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THE  LIBRARY 

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THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Harold  E.   Ives 


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CASES  ON  THE  LAW  OF  PROPERTY 

VOL.     I. 

PERSONAL  PROPERTY. 

By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

VOL.    IL 

RIGHTS  IN  LAND. 

F.y  Harry  A.  Bigelow. 

VOL.  in. 

TITLES  TO  REAL  PROPERTY. 

By  Italph  W.  Aigler,  Professor  of  Law  in  the 

University   of   Michigan. 

VOL.  IV. 

FUTURE  INTERESTS. 

By  Albert  M.  Kales,  of  the  Chicago  Bar,  former- 
ly Professor  of  Law  in  Harvard  University. 

VOL.   V. 

WILLS,  DESCENT,  AND  ADMINISTRA- 

TION. 

By  George  P.  Costigan,  Jr.,  Professor  of  Law  in 
Northwestern  University. 

Aig.Prop.  (ii) 


CASES  ON  THE  LAW  OF  PROPERTY 

VOLUME  3 

TITLES   TO   REAL    PROPERTY 

ACQUIRED  ORIGINALLY  AND  BY 
TRANSFER  INTER  VIVOS 


By  RALPH  W.  AIGLER 

PEOl- ESSOR  OF  LAW  IN  THE  UNIVEBSITT  OF  MICHIGAN  LAW  SCHOOL 


AMERICAN  CASEBOOK  SERIES 

WILLIAM  R.  VANCE 

GENERAL  EDITOR 


ST.     PAUL 

WEST  PUBLISHING  COMPANY 
1916 


X 


/ 


COPTBIGHT,    1916 
BY 

WEST  PUBLISHING  COMPANY 
(Aig.Prop.) 


^~       C^^^-*  -i'^  J 


To  Dean  Henry  M.  Bates 

in  Appreciation  of  His  Kindly  Interest  and  Sympathy 

this  Book  is  Dedicated. 


(v)< 


THE  AMERICAN  CASEBOOK  SERIES 


Thk  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
that  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements: 

"To-day  the  case  method  forms  the  principal,  if  not  ithe  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems. From  this  masterly  report,  so  replete  with  brilliant  analysis 
and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 

(vii) 


VIU  PREFACE 

of  many  Judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 

"It  emphasizes  the  scientific  character  of  legal  thought ;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school*  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement: 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 


PREFACE  IX 

tations  of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

"The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine, 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  almost  universally  required  for  admission  to  the  bar: 

Administrative  Eaw,  Equity  Pleading. 

Agency.  Evidence. 

Bailments.  Insurance. 

Bills  and  Notes.  International  Law. 

Carriers.  Jurisprudence. 

Code  Pleading.  Legal  Ethics. 

Common-Law  Pleading.  Partnership. 

Conflict  of  Laws.  Personal  Property. 

Constitutional  Law.  Public  Corporations. 

Contracts.  Quasi  Contracts. 

Corporations.  Real  Property. 

Criminal  Law.  Sales. 

Criminal  Procedure.  Suretyship. 

Damages.  Torts. 

Domestic  Relations.  Trusts. 

Equity.  Wills  and  Administration, 

"International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 


X  pul:facb 

and  as  the  cases  are  g-enerally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published  books  on  the  following  subjects: 

Administrative  Laiv.  By  Ernst  Freund,  Professor  of  Law  in  the 
University  of  Chicago. 

Agency.  By  Edwin  C.  Goddard,  Professor  of  Law  in  the  University 
of  Michigan. 

Bills  and  Notes.  By  Howard  L.  Smith,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin,  and  Underbill  Moore,  Professor  of  Law  in 
Columbia  University. 

Carriers.  By  Frederick  Green,  Professor  of  Law  in  the  University  of 
Illinois. 

Conflict  of  Lazvs.  By  Ernest  G.  Lorenzen,  Professor  of  Law  in 
Yale  University. 

Constitutional  Law.  By  James  Parker  Hall,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Chicago. 

Contracts.    By  Arthur  L.  Corbin,  Professor  of  Law  in  Yale  University. 

Corporations.  By  Harry  S.  Richards,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Wisconsin. 

Criminal  Law.  By  William  E.  Mikcll,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Pennsylvania. 

Criminal  Procedure.  By  William  E.  Mikell,  Pean  of  the  Faculty  of 
Law  in  the  University  of  Pennsylvania. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 
of  Chicago,  and  Barry  Gilbert,  of  the  Chicago  Bar. 

Equity.  By  George  H.  Boke,  Professor  of  Law  in  the  University  of 
Oklahoma. 

Evidence.  By  Edward  W.  Hinton,  Professor  of  Law  in  the  Universi- 
ty of  Chicago. 

Insurance.  By  William  R.  Vance,  Professor  of  Law  in  Yale  Uni- 
versity. 

International  Law.  By  James  Brown  Scott,  Professor  of  International 
Law  in  Johns  Hopkins  University. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P.  Costigan,. 
Jr.,  Professor  of  Law  in  Northwestern  University. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin, 


PREFACB  XI 

Persons  (including  Marriage  and  Divorce).     By  Albert  M.  Kales,  of 

the  Chicago  Bar,  and  Chester  G.  \'ernier,  Professor  of  Law  in 

Stanford  University. 
Pleading  (Common  Law).     By  Clarke  B.  Whittier,  Professor  of  Law 

in   Stanford  University,  and  Edmund  M.  Morgan,  Professor  of 

Law  in  Yale  University. 
Property  (Titles  to  Real  Property).     By  Ralph  W.  Aigler,  Professor 

of  Law  in  the  University  of  Michigan. 
Property  (Personal).  By  Harry  A.  Bigelow,  Professor  of  Law  in  the 

University  of  Chicago. 
Property    (Rights  in  Land).      By   Harry   A.    Bigelow,   Professor   of 

Law  in  the  University  of  Chicago. 
Property  (Wills,  Descent,  and  Administration).     By  George  P.  Costi- 

gan,  Jr.,  Professor  of  Law  in  Xorthwestern  University. 
Property  (Future  Interests).     By  Albert  M.   Kales,  of   the  Chicago 

Bar. 
Quasi  Contracts.    By  Edward  S.  Thurston,  Professor  of  I^aw  in  Yale 

University. 
Sales.    By  Frederic  C.  Woodward,  Professor  of  Law  in  the  University 

of  Chicago. 
Suretyship.     By  Crawford   D.   Hening,   formerly   Professor  of  Law 

in  the  University  of  Pennsylvania. 
Torts.     By  Charles  M.  Hepburn,  Dean  of  the  Faculty  of  Law  in  the 

University  of  Indiana. 
Trusts.    By  Thaddeus  D.  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

William  R.  Vance, 

General  Editor. 
June,  1921, 


AUTHOR'S  PREFATORY  NOTE 


Many  law  teachers  have  felt  that  Titles  should  be  the  basis  of  the 
beginning  course  in  Property.  Although  this  volume  appears  as  num- 
ber tliree  in  a  series  of  casebooks  covering  the  law  of  Property,  it  is 
believed  that  the  subject-matter  of  the  volume,  with  possibly  some 
shifts  in  order  of  the  topics,  is  such  that  it  may  well  be  used  in  that 
way. 

That  most  of  the  topics  taken  up  in  this  volume  are  appropriately 
considered  under  the  head  of  Titles  there  cannot  be  much  question. 
A  word  of  explanation  as  to  the  editor's  plan  may  perhaps  dispose  of 
any  question  that  may  arise  as  to  why  certain  matters  were  included 
here.  It  may  be  suggested,  for  instance,  that  the  matter  of  Estates 
should  not  be  gone  into  to  the  extent  to  which  it  is  herein  considered. 
It  would  be  expected,  however,  that  in  a  book  on  Titles  there  would 
be  a  treatment  of  the  important  and  troublesome  matter  of  the  extent 
of  the  interest  acquired  or  transferred.  It  has  seemed  wise  not  to 
limit  here  the  discussion  of  Estates  to  their  creation,  but  to  take  up 
the  entire  subject  in  the  one  connection  and  dispose  of  it,  excluding, 
of  course,  the  detailed  consideration  of  Future  Estates  and  kindred 
topics,  treated  elsewhere.  In  fact,  throughout,  the  plan  has  been  to 
place  a  topic  where  primarily  it  would  seem  to  belong,  for  pedagogic 
or  other  reasons,  and  then  dispose  of  it  once  for  all. 

In  the  treatment  of  Uses  before  the  Statute  of  Uses  the  editor  has 
frankly  abandoned  the  case  method  as  being  unsuited  to  the  accom- 
plishment of  the  desired  end,  and  has  printed  a  very  brief  statement, 
which  may  serve  as  an  introduction  to  a  more  complete  discussion 
by  the  instructor.  The  editor  has  vet  to  find  a  student  who  can  gather 
any  coherent  ideas  as  to  Uses  before  the  Statute  from  the  fragmentary 
extracts._from  secondary  authorities  printed  in  volume  1  of  Gray's 
Cases.,  And  this  seems  quite  commonly  to  have  been  the  experience 
of  other  teachers  of  the  law  of  Real  Property. 

The  editor  desires,  however,  upon  this  occasion,  to  express  his  ap- 
preciation of  and  admiration  for  Gray's  Cases  on  Property.  Probably 
no  man  in  the  United  States  had  so  large  an  influence  upon  our  law 
of  Property  as  has  Professor  Gray,  and  the  collection  of  cases  which 
bears  his  name  has  played  no  inconsiderable  part  in  exerting  that  in- 
fluence. 

The  editor  acknowledges  his  indebtedness  to  Mr.  Grover  C.  Gris- 
more,  Instructor  in  Law  in  the  University  of  Michigan  Law  School, 
for  assistance  in  the  preparation  of  this  volume. 

Ralph  W.  Aigler. 

Ann  Arbor,  Mich.,  May  1,  1916. 

(xiii)* 


TABLE  OF  CONTENTS 


PART  I 
Original  Titles 

CHAPTER  I 

Section  PossBSSORT  Titles  Page 

1.     Seisin   and    Disseisin 1 

Effects  of  Possession H 

Lapse  of  Time  W 

Adverse  Possession   43 

Constructive  Adverse  Possession 81 

6.     Disabilities    , i 91 

CHAPTER  II 
Peescbiption    ....  .^5rf:i.'.  .<V^.  .-^vt/'v  -"^^-f^  •  ^'Pf-r^^v^ 9^ 

'        CHAPTER  III 
Accretion   140 


PART  II 
Derivative  Titles 

ch.apter  i 

Mode  of  Conveyance 

1.  At  Common  Law ■. 156 

I.     Feoffment    156 

II.     Fine    160 

III,  Common   Recovery    160 

IV.  Lease    161 

V.     Exchange    161 

VI.     Partition    162 

VII.     Grant    162 

VIIL     Dedication     163 

IX.     Release     187 

X.     Confirmation IBS 

XL     Surrender    188 

XII.     Assignment    231 

XIII.  Defeasance    231 

XIV.  Devise 232 

2.  Under  Statute  of  Uses 232 

I.  Uses  Before  Statute  of  Uses 232 

11.  Statute  of  Uses  236 

III.  Uses  after  Statute  of  Uses 239 

Aig.Prop.  (xv) 


7t 


XVI  TABLE   OF   CONTENTS 

Section  Page 

2.  Under  Statute  of  Uses     (Continued) 

(A)  Uses  Raised  in  Connection  with  Common  Law  Con- 

veyance      239 

(B)  Uses  Raised  Independently  of  a  Common  Law  Con- 

veyance    247 

(C)  Limitations  Upon  the  Operation  of  the  Statute  of  Uses  261 

3.  Under  Modern  Statutes 268 

CHAPTER  II 
Execution  or  Deeds 

1.  Siffiiiug    275 

2.  Sealing    275 

3.  Attestation    ^ 279 

4.  Aclinowledgment    279 

5.  Delivery    , 279 

CHAPTER  III 

The  Property  Conveyed     .  w-Cf-^  c  -^  /      ^'^<-   v^  J 

1.  Boundaries    ' -294 

2.  Exceptions  and  Reservations 449 

CHAPTER  IV 
Creation  of  Easements  by  Implication 466 

CH.VPTER  V 

Estates  Created 

1.  Estates  in  Fee  Simple 547 

2.  Estates  in  Fee  Tail 556 

3.  Life  Estates    570 

I.     Conventional    570 

II.     Legal    579 

(A)  In  Tail  after  Possibility  of  Issue  Extinct 579 

(B)  Husband's  Interest  in  Wife's  Realty 5S0 

(C)  Wife's  Interest  in  Husband's  Realty 597 

4.  Estates  for  Years 628 

5.  Estates  at  Will  and  from  Year  to  Year 634 

6.  Concurrent  Estates  685 

7.  Reversions  and  Remainders  731 


CHAPTER  Vl 
Covenants  fob  Title /?f7v/."ffaC^ 734 


/?r7v/."^J, 


CHAPTER  VII 
Estoppel  by  Deed  779 

CHAPTER  VIII 

Peiobities 

1.  Fraudulent  Conveyances  , 810 

2.  Recording     826 

I.     In  England    826 

II.     In  United  States   834 

(A)  Statutes 834 

(B)  Scope  of  Operation  and  Effect  of  Statutes 837 

(C)  Effectiveness  of  Recotd 914 


TABLE     OF  CASES 

[cases  cited  in  footnotes  are  indicated  by  italics,    where  small  capitals 
abe  used,  the  case  is  befekeed  to  in  the  text] 


Page 

Abbott  V.  Holway 268 

Adams  v.  Gordon 529 

Agency  Co.   v.   Short 28 

Allen  V.  Jaquish 191 

Amos,  In  re 573 

Anderson,  In  re 71 

Andrew  v.  Pearce 746 

Angus  v.  Dalton 116 

Ann  Arbor  Fruit  <&  Vinegar  Co.  u 

Ann  Arbor  R.  Co 128 

Anon.   195 

Arbenz  v.  E'xley,  Watkins  &  Co. . .  680 

Armstrong  v.  Wolsey 241 

Asher  v.  Wbitlock 11 

Auer  V.  Pennsylvania 220 

A VETiNE  V.  WnissoN 275 

Ayer  v.   Philadelphia  &  B.   Face 

Brick  Co 790 


Bailey  v.  Agawam  Nat.  Bank . . . . 

Bailey  v.   Carleton 

Baker  v.  Mather 

Baker  v.  Rice   

Baker  v.    Snavely 

Bangor     House     Proprietarj'     v. 

Brown    

Banks  v.  Ogden 

Barber  v.  Bailey 

Barker  v.  Keete 

Barloic  v.  Rhodes 

Barlow  v.  Waimvright 

Barnes  v.  Barnes 

Bates  V.  Bates 

Baxter  v.  Taylor 

Bayley  v.  McCoy 

Beardsley  v.  Knight 

Beatty  v.  Kurtz 

Beckicith's  Case 

Beddoe's  Ex'r  v.  Wadsworth 

Bedford  v.  Bacchus 

Belden  v.  Carter 

Bellamy  v.  Sahine 

Bleivitt  V.  Boorum 

Blight  v.  Schenck 

Board  v.  Board 

Bond  V.  O'Gara 

Borland's  Lessee  v.  Marshall 

Boyd  V.   Slayback 

Boynton  v.  Haggart. 

Bradley  v.  Missouri  Pac.  R.  Co.. . 

Braythwayte  v.  Hitchcock 

Brigham   v.    Smith 

Bromley  v.  Stanley 

Broughton  v.   Randall 

Brown  v.  Alabaster 


458 
84 
893 
529 
370 

426 
436 
125 
236 
466 
665 
300 
602 
109 
781 
749 
168 
235 
736 
827 
316 
914 
314 
354 
70 
61 
588 
280 
887 
278 
657 
494 
195 
597 
478 


Page 

Brown  v.  Brown 616 

Broivn  V.  Cairns 221 

Brown  v.  Fuller 511 

Bryan  v.  Atwater 52 

Btickworth  v.  TMrkell 595 

Burkholder  v.  Markley 408 

Burnett  v.  Burnett 305 

Buss  V.   Dyer 518 

Bussmeyer  v.  Jablonsky 521 

Butler  V.  Butler   624 

Butterworth  v.  Crawford 535 

Calvert  v.   Aldrich 716 

Campbell  v.   Thomas 357 

Canby  v.   Porter 583 

Carllee  v.  EUsberry 550 

Carrier  v.  Price 573 

Carter  v,   Barnard 26 

Cassidy  v.  Sullivan 182 

Caswell  V.  Districh 630 

Catlin'  V.  Ware 622 

Cheney  v.  Watkins 258 

Chicago.  &  B.  I.  R.  Co.  v.  Willard  436 

Child  v.  Starr 423 

Christmas  v.  Oliver 793 

Cincinnati  v.  White 165 

City   of  Battle   Creek   v.    Goguac 

Resort  Ass'n   541 

Clayton  v.  Blakey 66i 

Collard  v.  Collard 236 

Cook  V.  Brown 316 

Cooke  V.  Kell 820 

Coppy  V.  I.  De  B 466 

Coudert  v.  Cohn 662 

Cover  V.  James 549 

Crenshaw  v.   Moore 016 

Cressey  v.   Cressey 725 

Crossley  &  Sons  v.  Lightowleb  483 

Croxall  V.  Shererd 262 

Curry  v.  Colburn 281 

Curtis  V.  Galvin 641 

Dabney  v.  Child 495 

navies  v.  Bear 471 

Davison  ex  dem.  Bromley  v.  Stan- 
ley      195 

Dean  v.  Goddard 72 

Dee  V.  King 455 

Dodd  V.  W^itt 44ff 

Doe  V.  Jesson 91 

Doe  d.  Murrell  v.  Mihcard 194 

Doe  d.  Newman  v.  Rushain 819 

Doe  d.  Rigge  v.  Bell 661 

Doe  d.  Robinson  v.  Allsop 834 

Doe  d.  Souter  v.  Hull 68 


Aiq.Pbop.— b 


(xvii) 


XVIU 


TABLE   OF   CASES 


Page 

Doe  d.  Thomson  v.  Amey 660 

Doe  ex  dem.  Carter  v.  Barnard . .  26 
Doe  ex  dem.  Christmas  v.  Oliver  793 
Dow  ex  dem.  Garnons  v.  Knight.  .  28S 

Doe  ex  dem.  Goody  v.  Cartec 24 

Doe  ex  dem.  Harlan  v.  Brown...  32 
Doe  ex  dem.  Lloyd  v.  Passingham  262 
Doe  ex  dem.  Otley  v.  Mianning. ..  812 
Doe  ex  dem.  Parker  v.  Gregory. .     66 

Dorrell  v.   Collins 449 

Dow  V.   Whit7iey 892 

Downing  v.  Coatesville  Borough.  .  183 

Driiry  v.  Holden 792 

Dungan  v.  Kline 566 

Edwards  v.  Bibb 603 

Edicick  V.  Hawkes 655 

Ega7i  V.  Horrigan 300 

Egerton's  Case  239 

Ellwtt  V.  Murray 283 

Ellis  V.  Kyger 60S 

EUis    V.   Paige 665 

Elston  V.  Piggott 703 

Emerson  v.   Mooney 450 

Everts  v.  Agnes 347 

Ewing  V.  Nesbitt 560 

Fancy  v.  Scott 452 

Farley  v.  Palmer 362 

First  Universalist  Soc.  v.  Boland  552 

Fitch  V.   Bunch 360 

Fitzgerald  v.  Lihhy 892 

Flower  v.  Darby 670 

Flynn  v.  Flynn 612 

Ford  v.  Metropolitan  R,  Cos 477 

Fortier  v.  Ballance 65 

Foster  v.  Marshall 584 

French  v.  Pearce 51 

Frost  V.  Beekman 926 

Frost  V.  Beekman 374 

Fryer  v.  Fryer 295 

Galley  v.  Ward 898 

Garnons  v.  Knight 288 

Geddes  Coarse  Salt  Co.  v.  Ni- 
agara, Lockport  &  Ontario  Pow- 
er Co 434 

Gee  V.  Hatley 66 

German   Savings   &   Loan   Co.   v. 

Gordon    529 

Gifford  V.  Tarboroiigh 140 

Gilliland  V.    Woodruff 81 

Goldsborough  v.   Gable 075 

Goody  V.  Carter 24 

Gouch  V.  AVood 275 

0ould  V.    Wagner 432 

Grady   v.    McCorkle 620 

Gray   v.    Kaufman   Dairy   &    Ice 

Cream  Co 211 

Green  v.  Wiseman 239 

Grey  &  Edwards'  Case 248 

Griswold  v.  Branf ord 665 


Page 

Griswold   v.  Johnson 723 

Plall  V.  Eaton 411 

Hall  V.  Harris 362 

Halsey  v.  McCormiek 145 

Ilamerton  v.  Stead 197 

Hannon  v.  Christopher 783 

Hanson  v.  Johnson 68 

Hardin  v.  Jordan 426 

Hare   v.   Celey 629 

Harlan  v.  Brown 32 

Harris  v.  Woodard 39i 

Havens  v.  Sea  Shore  Land  Co.. ..  258 
Haverhill  Sav.   Bank  v.  Griffin. .  4a3 

Hawksland  v.  Gatchel 335 

Herter   v.    Mullen 672 

Hildreth  v.   Googins 495 

Hillary  v.  Gay 638 

Hi/)ie    V.    Dodd 834 

Hoban  v.  Cable 402 

Holbrook  v.   Finney 598 

Holden  v.  Garrett 868 

Holmes  v.  Beixingham 431 

Htihbard  v.  Greeley 352 

Hubbard  v.  Town 117 

Hudson  V.  Alexander 248 

Hughes   V.    Graves 21 

Hull  V.  Sangamon  River  Drainage 

Dist 361 

Hunter's  ^^ssee  v.  Durrell 588 

Hurley  v.  Hurley 706 

Ingram  v.  Morris 619 

Ive's   Case 195 

Jackson  v.  Baird .' 709 

Jackson     ex     dem.  '  Gilliland     v. 

Woodruff 81 

Jackson  ex  dem.  Gouch  v.  Wood. .  275 
Jackson  ex  dem.  Hudson  v.  Alex- 
ander   248 

Jackson    ex    dem.    McCrackin    v. 

Wright 780 

Jarvis  v.   Aikens 801 

Jefferys  v.  Bucknell 789 

Johnson  v.  Johnson 314 

Johnson  v.   Thomas 56 

JoxES  V.  Smith 896 

Jordan  v.  Chambers 797 

Kay  V.  Oxley 466 

Kelsey,  Appeal  of 722 

Kennedy  v.   De   Trafford 702 

King  V.   Durkee-Atwood   Co 677 

King  v.  Leake 184 

Kingdon  v.  IS'ottle 755,  757 

Kirkpatrick  v.  Mathiot 706 

Kister  v.  Reeser 452 

Ladd  V.  Ladd 331 

Lade  v.  Shepherd 163 

Lamb  v.  Crosland 104 


TABLE    OF    CASES 


XIX 


Langley  v.   "Hammond 466 

Layton  v.  Field 657 

Leach  v.  Jay 7 

rjectmian  v.   Mills 128 

Tx'e  V.  Richmond 344 

Lego  V.  Medley 395 

Lehigh  Valley  R.  Co.  v.  McFarlan  132 

Leighton  v.   Theed 636 

Le  Neve  v.  Le  Neve 829 

Leonard  v.  Leonard 139 

Lerued  v.  Morrill 407 

Lessee  of  White  v.  Sayre 728 

Lewes  v.   Ridge 754 

Letvis  V.   Cook 749 

Liford's  Case 18 

Liquid  Carbonic  Co.  v.  Wallace. . .  527 

Lloyd  V.  Passingham 262 

London     Freehold     &     Leasehold 

Property  Co.  v.  Suffield 336 

Loomis  V.  Loomis 322 

Lord  Ward  v.  Lninley 190 

Losey  v.   Simpson 843 

LoiHngston  v.  St.  Clair  County . . . .  147 

Low  V.    Elwell 652 

Low  V.  Tibbetts 438 

Lucy  V.  Levirniton 754 

Lutwich   V.    Mitton 248 

Lyon  V.  Reed 221 

Lyons  V.  Philadelphia  &  R.  R.  Co.  669 

McCrackin  v.    Wright 780 

McCullock  V.  Holmes 548 

McKenzie  v.  Gleason 440 

McNeely  v.  Langan 36 

Mallott  V.  Wilson 383 

Mancuso   v.    Riddlemoser   Co.    of 

Baltimore  City  509 

Mangold  v.  Barlow 929 

Manning  v.  N.  J.  Short  Line  R.  R. 

Co 494 

Markland  v.  Crump 770 

Marshall  v.  Roberts 882 

Masvn  v.  Wierengo's  Estate 680 

Mather    v.    Ministers   of    Tr-inity 

Church    18 

Matson  v.  Johnson 303 

Mattocks  V.  Stearns 582 

May  v.  Emerson 365 

Maynard  v.  Esher ^  . . .  491 

Mildmay's  Case    251 

Mitchell  V.  Mc  Shane  Lumber  Co.     79 

Mitchell  V.  Ryan 297 

Mitchell  V.  Rydn 385 

Mitchell  V.   Seipel 504 

Mitchell  V.  Warner 759 

MoELLE  V.  Sherwood 889 

MOLLET  V.  Beyne 206 

Montgomery    v.    Tate 580 

Moore  v.  Bennett 892 

Moore  v.  Trott 316 

Morecock  v.  Dickins 827 

Morehead  v.  Hall 401 


Page 

Morrison  v.  Marqnardt 494 

Morse  v.  Curtis 852 

MUREAY  V.  Earl  of  Stair 341 

Murray  v.  Kerney 258 ' 

Murray  v.  Stair  (Earl) 341 

Miirrell  v.  Milward 194 

Mustain  v.  Gardner 690 

Mutual  L.  Ins.  Co.  v.  Dake 937 

Newman  v.  Rusham , .  819 

Neicton  v.  Harland 639 

Nicholas  v.  Chamberlain.  .....  479 

Nichols  V.  Luce 495 

Nickclls  V.  Atherstone 231 

Noke  V.  Awder 734 

NorcToss  V.  Oriffiths 426 

Nordman  v.  Rau 909 

Ogle  V.  City  of  Cumberland 184 

Oldewurtel  v.  Wiesenfeld 217 

Oliver  V.  Hedderly 706 

Oliver  v.    Piatt 889 

Oregon    Laws 837 

Otley  V.   Manning 812 

Owings  V.  First  Nat.  Bank 320 

Paine^s  Case 595 

Palmer  v.  Cook 549 

Palmer  v.  Ekins 736 

Palmer   v.    Fletcher 469 

Parker  v.  Gregoi^y 60 

Parrott  v.  Avery 28G 

Parry  v.  Carwardcn 819 

Patman  v.   Haiiund S'.M 

Paul  v.  Carver 441 

Pavey  v.  Vance 121 

Pearson  v.  Spencer 477 

Pegg  v.  Pegg 69S 

Perkins  v.   Coleman 796 

Perry  v.  Clissold 13 

Peters  v.  Cartier 884 

Pettingill  v.  Porter 495 

Phillips  v.  Low 487 

Pickering  v.  Pickering 720 

Pico  V.  Columbet 711 

Pinnington  v.  Galland 469 

Polden   V.   Bastard 474 

Pollen  and  Wife  v.  Brewer 639 

Preble  v.  Mkaine  Cent.  R.  Co 56 

Pringle  v.   Dunn 916 

Prouty  V.  Marshall 932 

Pyer  v.  Carter 472 

R.  Co.  V.  Walker 455 

Ralph  V.  Bayley 89 

Rankin  v.  Miller 845' 

Rathmell  v.  Shirey 331 

Ray  V.  Hazeldine 491 

Reader  v.  Purdy 645 

Resser  v.  Carney 804 

Rex   V.    Hudson 163 

Rex  V.  Lloyd 164 


XX 


TABLE   OF   CASES 


Ricard  v.  Williams 

liich  V.  NafCziger 

RicHAEDs  V.  Rose 

Rigge  V.  Bell 

Right  d.  Flower  v.  Darby 

Right  d.  Jefferys  v.  Bucknell 

Robbins  v.  Barnes 

Robinson  v.  Allsop 

Robinson  v.  Bates 

RoMnsan  v.  Lowe 

Roe  ex  dem.  Wilkinson  v.  Ti-an 


mer    

RoUo  V.  Nelson 

Rosse's  Case 

Ruggles  V.  Lawson 

Saccone  v.  West  End  Trust  Co. . . 

St.  Clair  v.  Williams 

Salter  v.  Jonas 

Sambach  v.   Dalton 

Say  V.   Stoddard 

Ftchaubvch  v.  Dillemuth 

Schieffelin  v.  Carpenter 

Sehotield  v.  Iowa  Homestead  Co.. . 

fiehool  Trustees  v.  Schroll 

Schurtz  V.  Colvin 

Scott  V.  Stone 

Seibert  v.  Levan 

Shannon  v.  Kinny 

Sharington  v.  Strotton 

Sherin  v.  Brackett 

Shoemaker  v.  Walker 

Short  ridge  v.  Lamphigh 

SiNcy  V.  Eolden 

Sigourney  v.  Larned 

Simmons  v.  Paterson 

Simonson  v.  Wenzel 

Sizer  v.  -Devereux 

Sleeper  v.  Lacouia 

Smiley  v.  Smiley 

Smith  V.  Bnrtis 

Smith  V.  Detroit  L.  &  B.  Ass'n.  . . 

Smith  V.   Garland 

Smith's  Ex'r  v.  Jones 

Smith's  Heirs  v.  Branch  Bank  at 

Jlobile   

Sohier  v.  CoflSn 

Solberg  v.  Robinson 

Souter  V.  Hull 

Stanton  v.  Chamberlain 

Starr  v.   Child 

Steel  V.  Frick 

Stein  V.  Hyman^Lewis  Co 

Steml>erger  &  Willard  v.  Ragland 

Stone  V.  Duvall 

Stonehill  v.  Hastings.' 

Strong  V.  Whybark 

Sturgeon  v.  Wing  field 

Sttirges  V.  Bridgman 

SuFFiELD  V.  Brown 


Page 

43 

39 

486 

661 

670 

789 

467 

8.^4 

624 

91 

255 
52Q 
573 
312 

429 
758 
440 
262 
642 

56 
200 
767 
426 
3.52 
368 
497 

31 
236 

34 
600 
240 
4.39 
914 
443 
837 
421 
443 
329 
7 
656 
819 
461 


885 
17 
740 
68 
279 
443 
631 
221 
872 
322 
325 


«77 

796 

114 

483 

Taunton  v.  Costae 637 


Pape 

Tefft  V.  Mhinson 858 

Temple  v.  Benson 416 

Terrell  v.  Andrew  County 927 

Thomas  v.  Cook 207 

Tliomas  v.  Stone  &  Graham SSO 

Thompson  v.   Baxter 575 

Thompson  v.  Leach 375 

Thomson  v.  Amey 660 

Thorn  v.  Neusom 884 

Thomburg  v.  Wiggins 692 

Tichhorne  v.  Weir 24 

Tisher  v.  Beckwith 283 

Toothe  V.  Bryce 521 

Trowbridge   v.   Ehrich 444 

Turner   v.    Meymott 636 

Tyrrel's   Case 261 

Ure  V.  Ure 266 

Van  Der  Volgon  v.  Yates 241 

Van  Home  v.  Fonda 700 

Van  Rensselaer  v.   Kearney...  786 

Volcanic  Oil  &  Gas  Co.  v.  Cluiplin  147 

Wallace  v.  Fletcher 94 

Wallis   V.    Doe   ex   dem.    Smith's 

Heirs  610 

Walls  V.   Atcheson 209 

Walter  v.  Greennood 720 

Ward  (Lord)  v.  Lumloy 190 

Waters  v.  Philadelphia 174 

Watson  V.   Watson 595 

Webb  V.  Bird 112 

Weeks  v.  New  York,  W.  &  B.  R. 

Co 538 

Welch  V.  Sackett 384 

West  V.  Weyev 715 

Whalley  v.  Thompswi 406 

Wheeldon  v.   Burrows 478 

Wheeler  v.  Young 862 

Wheelwright  v.   Wheelwright 308 

\STiitaker   r.  Brown 449 

Whitehead  v.  Clifford 206 

Whitehead  v.  Ragan 405 

Whiting  v.  Whiting 616 

Whittier  v.  Montpclier  Ice  Co 443 

Whyddon's    Case 3.34 

Wilkinson  v.  Tranmer 255 

Williams  v.   Burrell 748 

Williams  v.  Green 336 

Williamson   v.   Brown 902 

Wilson  v.  Hart 896 

Wilson  V.  Taylor's  Ex'rs 776 

Wipfler  V.  Wipfler 342 

Woods  V.  Garnett 854 

Wormley  v.  Wormley 177 

Wyman  v.  Brown 270 

Yard  v.  Ford Ill 

Youngblood  v.  Vastine 849 

Zick  V.  London  United  Tramways, 

Limited 197 


CASES  ON   PROPERTY 


TITLES  TO  REAL  PROPERTY 


PART  I 

ORIGINAL  TITLES 


CHAPTER  I 
POSSESSORY  TITLES 


SECTION  1.— SEISIN  AND  DISSEISIN 


MAITLAND,  THE  MYSTERY  OF  SEISIN. 

Any  one  who  came  to  the  study  of  Coke  upon  Littleton  with  some 
store  of  modern  legal  ideas  but  no  knowledge  of  English  Real  Prop- 
erty Law  would,  it  may  be  guessed,  at  some  stage  or  another  in  his 
course  find  himself  saying  words  such  as  these:  "Evidently  the  main 
clue  to  this  elaborate  labyrinth  is  the  notion  of  seisin.  But  what  pre- 
cisely this  seisin  is  I  cannot  tell.  Ownership  I  know,  and  possession 
I  know,  but  this  tertium  quid,  this  seisin,  eludes  me.  On  the  one  hand, 
when  Coke  has  to  explain  what  is  meant  by  the  word  he  can  only  say 
that  it  signifies  possession,  with  this  qualification,  however,  that  it  is 
not  to  be  used  of  movables,  and  that  one  who  claims  no  more  than  a 
chattel  interest  in  land  cannot  be  seised,  though  he  may  be  possessed. 
But,  on  the  other  hand,  if  I  turn  from  .definitions  to  rules,  then  cer- 
tainly seisin  does  look  very  like  ownership,  insomuch  that  the  owner- 
ship of  land,  when  not  united  with  the  seisin,  seems  no  true  ownership." 

The  perplexities  of  this  imaginary  student  would  at  first  be  rather 
increased  than  diminished  if  he  convinced  himself,  as  I  have  convinced 
myself  and  tried  to  convince  others,  that  the  further  back  we  trace  our 
legal  history  the  more  perfectly  equivalent  do  the  two  words  seisin  and 
possession_become ;  that  it  is  the  fifteenth  century  before  English  law- 
yers have  ceased  to  speak  and  to  plead  about  the  seisin  (thereby  be- 
Aig.Pbop. — 1 


2  ORIGINAL  TITLES  (Part  1 

ing  meant  the  possession)  of  chattels.  Certainly  as  we  make  our  way 
from  the  later  to  tlie  older  books  we  do  not  seem  to  be  moving  towards 
an  age  when  there  was  some  primeval  confusion  between  possession 
and  ownership.  We  find  ourselves  debarred  from  the  hypothesis  that 
within  time  of  memory  these  two  modern  notions  have  been  gradually 
extricated  from  a  vague  ambiguous  seisin  in  which  once  they  were 
blent.  In  Bracton's  book  the  two  ideas  are  as  distinct  from  each  other 
as  they  can  possibly  be.  He  is  never  tired  of  contrasting  them.  In 
season,  and  (as  the  printed  book  stands)  out  of  season  also,  he  insists 
that  seisina  or  possessio  is  quite  one  thing,  dominium  or  proprietas 
quite  another.  He  can  say  with  Ulpian,  "Nihil  commune  habet  pos- 
sessio cum  proprietate." 
2  Law  Quarterly  Rev.  481. 


POLLOCK  &  MAITLAND,  HIST.  ENG.  LAW. 

On  the  whole  we  may  say  that  the  possession  of  land  which  the  law 
protects  under  the  name  of  a  "seisin  of  freehold"  is  the  occupation  of 
land  by  one  who  has  come  to  it  otherwise  than  as  tenant  in  villeinage, 
tenant  at_will^ tenant  for  term  of  vears  or  guardiaa:  that  occupation 
being  exercised  by  himself,  his  servants,  guardians,  tenants  in  villein- 
age, tenants  at  will  or  tenants  for  term  of  years.  This  seems  the  best 
statement  of  the  matter :  Occupation  of  land  is  seisin  of  free  tenement 
unless  it  has  been  obtained  in  one  of  certain  particular  ways.  If,  how- 
ever, we  prefer  to  look  at  the  other  side  of  the  principle,  we  may  sav 
that  the  animus  required  of  the  person  who  is  "seised  of  free  tenement" 
is  the  intent  to  hold  that  land  as  though  he  were  tenant  for  life  or  ten- 
ant in  fee  holding  bv  some  free  tenure. 

2  P.  &  M.  Hist.  Eng.  Law  (2d  Ed.)  40. 


MAITLAND,  THE  MYSTERY  OF  SEISIN. 

There  is  another  side  to  the  picture  we  have  here  drawn.  He  who 
is  seised,  though  he  has  no  title  to  the  seisin,  can  alienate  the  land ; 
he  can  make  a  feoffment  and  he  can  make  a  will  (for  he  who  has  land 
is  enabled  to  devise  it  b}'  statute),  and  his  heir  shall  inherit,  shall  inherit 
from  him,  for  he  is  a  stock  of  descent;  and  there  shall  be  dower  and 
there  shall  be  curtesy,  and  the  lord  shall  have  an  escheat  and  the  king 
a  forfeiture,  for  such  a  one  has  land  "to  give  and  to  forfeit."  This 
may  make  seisin  look  very  much  like  ownership,  and  in  truth  our  old 
law  seems  this  (and  has  it  ever  been  changed?)  that  seisin  does  give 
ownership  good  against  all  save  those  who  have  better  because  oldei' 
title.  Nevertheless  we  err  if  we  begin  to  think  of  seisin  as  ownership 
or  any  modification  of  ownership  ;  after  all  it  is  but  possession.  A  term- 
or was  not  seised,  but  certainly  he  could  make  a  feoffment  in  fee  and 


Ch.  1)  POSSESSORY  TITLES  3 

his  feoffee  would  be  seised.  This  seems  to  have  puzzled  Lord  Mans- 
field, and  puzzling  enough  it  is  if  we  regard  seisin  itself  as  a  proprie- 
tary right,  for  then  the  termor  seems  to  convey  to  another  a  right  that 
he  never  had.  But  when  it  is  remembered  that  substantially  seisin  is 
possession,  no  more,  no  less,  then  the  old  law  becomes  explicable.  My 
butler  has  not  possession  of  my  plate,  he  has  but  a  charge  or  custody 
of  it ;  fraudulently  he  sells  it  to  a  silversmith ;  the  silversmith  now  has 
possession :  so  with  the  termor,  who  has  no  seisin,  but  who  by  a  wrong- 
ful act  enables  another  to  acquire  seisin. 
2  Law  Quarterly  Rev.  488. 


BRACTON,  DE  LEGIBUS  ANGLL^. 

Likewise  a  disseisin  takes  place,  not  only  if  any  one  ejects  the  true 
owner  when  present,  or  his  agent,  or  his  family,  or  does  not  admit 
him,  or  repels  him  on  his  return  from  market  or  from  a  journey,  but 
lie  also  effects  a  disseisin,  if  he  shall  not  permit  the  owner  or  his 
agent  or  his  family  being  in  possession  to  make  use  of  it,  or  at  least 
hinders  him  from  making  a  convenient  use  of  it.  And  in  which  case, 
although  he  does  not  altogether  expel  [the  owner  J,  nevertheless  he 
inflicts  upon  him  a  disseisin,  since  he  takes  away  from  him  altogether 
the  convenience  of  using  it^or  hinders  him  from  using  it  conveniently, 
quietly,  and  in  peace,  by  disquietmg  and  disturbing  his  possession. 
Likewise  a  disseisin  takes  place  not  only  according  to  what  has  been 
said  above,  but  also  if  any  person  of  greater  power  wishes  to  make  use 
of  the  tenement  of  another  against  the  will  of  the  tenant,  by  plough- 
ing, or  by  digging,  by  reaping  and  carrying  away,  contending  that  the 
tenement,  which  is  another's,  is  his  own ;  but  if  he  has  made  no  claim 
to  the  tenement,  it  will  be  another  thing.^  because  then  there  will  be  a, 
trespass.  and  not  a  disseisin  from  a  freehold,  or  by  turning  in  sheep, 
or  in  some  other  manner  imposing  a  servitude  upon  land,  which  was 
free  beforehand. 

Bracton,  fol.  161b;  Twiss'  Translation,  3  Tw.  Br.  17. 


LITTLETON'S  TENURES. 

And  note  that  disseisin  is  properly,  where  a  man  entreth  into  any 
lands  or  tenements  where  his  entry  is  not  congeable,  and  ousteth  him 
which  hath  the  freehold,  etc. 

Section  279.^ 

1  "Disseisin  was  tj^e  wrongful  takincr  ^^ny  ,frnm  fhp  rp^il  nwnPi'  nt  tus 
actual  seisin.  'Disseisin  was  formerly  a  notorious  act,  when  the  disseisor 
put  himself  in  the  place  of  the  disseisee  as  tenant  of  the  freehold  and  per- 
formed the  acts  of  the  freeholder  and  appeared  in  that  character  in  the 
lord's  cdurt'  Lord  Ellenborough,  in  William  v.  Thomas,  12  East,  141,  155 
(1810).     Or,  as  Lord  Mansfield  put  it:    'Disseisin,  therefore,  must  mean  some 


ORIGINAL  TITLES  (Part  1 


LEAKE,  LAW  OF  PROPERTY  IN  LAND. 

Disseisin  was  a  wrongful  entry  upon  the  land  and  ouster  or  dispos- 
session  of  the  freeholdej.  An  entry,  or  perception  of  rents  and  profits, 
under  colour  of  an  adverse Jitle,  although  evidence  of  an  ouster,  might 
be  explained  by  the  circumstances,  and  not  amount  to  a  disseisin. 
The  disseisor  acquired,  by  his  wrongful  act,  an  estate  in  fee  simple,  as 
against  all  but  the  real  owner,  and  upon  this  title  he  might  maintain 
an  action  of  ejectment  against  a  stranger  to  tlie  title  who  had  ousted 
him.  The  disseissee  retained  a  mere  right  of  entry  which,  if  exer- 
cised within  the  limits  of  time  which  were  periodically  fixed  by  law, 
revested  the  estate  in  him. 

Disseisin  of  the  tenant  of  a  particular  estate  disseised  or  divested 
all  tlie  estates  in  remainder  or  reversion,  and  converted  them  into  m^re 
rights  ot  entry,  exerciseable  in  their  order  of  succession. 

The  tenant  himself  of  the  particular  estate  whether  for  life,  or  for 
years,  having  the  actual  seisin,  had  it  in  his  power  to  make  a  feoffment 
to  another  by  livery,  which  effectually  conveyed  the  fee,  if  it  in  terms 
imported  to  do  so,  irrespectively  of  his  own  estate  or  interest;  and  such 
feoffment  disseised  all  the  estates  in  remainder  or  in  reversion  de- 
pendent upon  his  seisin  and  converted  them  into  rights  of  entry.  Feoff- 
ment by  tenant  in  tail  operated  rightfully  at  common  law,  but  was 
provided  against  by  the  statute  De  donis,  giving  a  writ  of  formedon 
to  the  issue  or  reversioner  or  remainderman.  It  tlierefore  took  away 
the  right  of  entry  and  left  only  the  right  of  action  under  the  stat- 
ute.    *     *     * 

An  entry  on  the  land  within  the  time  allowed  by  law  restored  the 
seisin,  and,  if  made  by  the  tenant  of  a  particular  estate,  it  restored  or 
revested  the  estates  in  remainder  or  reversion,  which  were  dependent 
upon  the  same  title.  Hence  a  right  of  e.ntrv  was  sufficient  to  preser^^e 
a  contingent  remainder.  It  is  to  be  observed  that  the  entry  of  the  dis- 
seisee  before  his  right  is  barred  by  lapse  of  time  restores  him  to  his 
former  title  by  relation  back.     He  may  therefore  maintain  an  action 

wa/  or  other  turning  the  tenant  ont  ^f  ^i^  l-pnnrp  anrl  iisurpiDg  his  place 
and  feudal  relation.'  Taylor  v.  Horde,  1  Burr.  60,  107  (1757).  How  this 
was  accomplished  originall.v,  unless  the  lord  conspired  with  the  disseisor, 
we  do  not  know.  It  is  sufficient  for  our  purpose  that  disseisin  was  early 
possible,  and  that  every  wrongful  taking  of  seisin  from  the  real  owner  was 
not  necessarily  a  disseisin.  Thati  only  was  disseisin  where  some  one  en- 
tered upon  and  ousted  one  who  had  taken  actiial  possession  under  claim  of 
treenold.'  Certainly  this  was  true  of  actual  disseisin,  though  there  was  a 
disseisin  by  election,  where  persons,  to  avail  themselves  of  the  remedy  by 
assize,  frequently  were  allowed  to  suppose  or  admit  themselves  to  be  dis- 
seised when  they  were  not.  Whatever  may  be  true  of  the  law  of  to-day, 
there  was  in  the  early  common  law  a  clear  distinction  between  disseisin  and 
other  forms  of  adverse  possession;  for  unless  actual  seisin  was  interfered 
with,  or  could  be  regarded  as  interfered  with  for  the  purposes  of  the  action, 
there  was  no  disseisin,  though  there  might  perhaps  be  an  abatement  or  some 
other  form  of  adverse  possession."  Geo.  P.  Costigan,  Jr.,  "Conveyance  of 
Lands  by  Disseisee,"  19  Harv.  Law  Rev,  268,  260. 


Ch.  1)  POSSESSORY  TITLES  5 

against  a  trespasser  for  a  wrong  done  between  tlie  date  of  disseisin 
and  entry.  And  even  before  a  change  in  the  law  enabled  after-acquired 
freehold  estates  to  be  devised,  the  entry  of  the  disseisee  validated  a 
devise  of  lands  made  while  he  -was  out  of  possession. 

The  ri.qht  of  entry,  arising  upon  a  disseisin,  was  lost  in  certain 
event^:  as  by  the  seisin  being  cast  by  descent  upon  the  heir  of  the 
disseisor ;  which  was  technically  called  a  descent  cast ;  also  by  an  alien- 
ation of  the  fee  by  the  disseisor  to  another,  which  was  called  a  discon- 
tinuance of  the  possession.  On  the  other  hand,  the  right  of  entry 
might  be  kept  alive  against  a  descent  cast  by  the  process  of  continual 
claim. 

Where  the  right  of  entry  was  lost  there  remained  a  mere  right  of 
action,  to  be  prosecuted  within  certain  limits  of  time  in  the  form  of 
real  action  provided  for  the  circumstances  of  the  case. 

The  doctrines  concerning  rights  of  entry  and  of  action  and  the  pro- 
ceedings in  real  actions  were  highly  technical  and  elaborate,  and  formed 
a  large  and  complicated  branch  of  the  law  of  real  property,  until  the 
amendments  of  the  law  made  by  the  Real  Property  Limitation  Act. 
1833.^  By  that  statute,  section  36,  real  actions  were  put  an  end  to  with 
three  exceptions,  which  were  subsequently  abolished,  and  the  action 
of  ejectmenj;^  or  as  it  is  now  known,  an  action  for  the  recovery  of  land, 
is  the  appropriate  remedy  at  law  for  the  recovery  of  the  possession  of 
land.  By  the  same  statute  the  right  of  entry  or  action  is  no  longer 
defeated  by  a  descent  cast  or  a  discontinuance  (section  39) ;  and  it  is 
exempted  from  all  other  casualties  except  lapse  of  time.  But  it  must 
be  prosecuted  within  twelve  years  next  after  the  accrual  of  the  right, 
unless  the  person  entitled  is  under  disability. 

Law  ofi  Property  in  Land  (Randall's  Ed.)  p.  40  et  seq. 


BUTLER  &  HARGRAVE'S  NOTE  TO  COKE  UPON 
LITTLETON. 

The  different  degrees  of  title  which  a  person  dispossessing  another 
of  his  lands  acquires  in  them  in  the  eye  of  the  law  (independently  of 
any  anterior  right),  according  to  the  length  of  time  and  other  circum- 
stances which  intervene  from  the  time  such  dispossession  is  made, 
form  different  degrees  of  presumption  in  favour  of  the  title  of  the  dis- 
possessor;  and  in  proportion  as  that  presumption  increases,  his  title 
is  strengthened ;  the  modes  by  which  the  possession  may  be  recovered 
vary;  and  more,  or  rather  different  proof  is  required  from  the  person 
dispossessed,  to  establish  his  title  to  recover. 

Thus,  if  A.  is  disseised  by  B.  while  the  possession  continues  in  B. 
it  is  a  mere  naked  possession,  unsupported  by  any  right,  and  A.  may 
restore  his  possession,  and  put  a  total  end  to  the  possession  of  B.  by 
an  entry  on  the  lands,  without  any  previous  action. 

If  B.  dies,  the  possession  descends  on  the  heir  by  act  of  law.    In  this 


6  OHIGESTAL  TITLES  (Part  1 

case,  the  heix„,cpjue5-lCLlhe.laud^  a  lawful  ..title,  and  acquires,  in  the 
eye  of  the  law,  an  apparent  right  of  possession;  which  is  so  far  good 
against  the  person  disseised,  that  he  has  lost  his  right  to  recover  the 
possession  by  entry,  and  can  only  recover  it  by  an  action  at  law.  The 
actions  used  in  these  cases  are  called  Possessory  Actions,  and  the 
original  writs  by  which  the  proceedings  upon  them  are  instituted,  are 
_caned  Writs  of . Entry -^ 

But  if  A.  permits  the  possession  to  be  ivithheld  from  him,  beyond  a 
certain  period  of  time,  without  claiming  it,  or  suffers  judgment  in  a 
possessory  action  to  be  given  against  him  by  default,  or  upon  the  mer- 
its ;  in  all  these  cases,  B.'s  title  in  the  eye  of  the  law  is  strengthened, 
and  A.  can  no  longer  recover  by  a  possessory  action,  and  his  only 
remedy  then  is  by  an  action  on  the  right.  These  last  actions  are  called 
Droiturel  Actions,  in  contradistinction  to  Possessory  Actions.  They 
are  the  ultimate  resource  of Jthe  person  disseised.;  so  that,  if  he  fails  to 
bring  his  writ  of  right  within  the  time  limited  for  the  bringing  of  such 
writs,  he  is  remediless,  and  the  title  of  the  dispossessor  is  complete. 
The  original  writs  by  which  droiturel  actions  are  instituted  are  called 
Writs  of  Right. 

The  dilatoriness  and  niceties  in  these  processes,  introduced  the  Writ 
of  Assize.  The  invention  of  this  proceeding  is  attributed  to  Glanville, 
Chief  Justice  to  Henry  11.  (See  Mr.  Reeves's  History  of  the  English 
Law,  Part  I,  ch.  3.)  It  was  found  so  convenient  a  remedy,  that  per- 
sons, to  avail  themselves  of  it,  frequently  supposed  or  admitted  them- 
selves to  be  disseised,  by  acts  which  did  not  in  strictness  amount  to  a 
disseisin.  This  disseisin,  being  such  only  by  the  will  of  the  party,  is 
called  a  disseisin  by  election,  in  opposition  to  an  actual  disseisin :  it  is 
only  a  disseisin  as  between  the  disseisor  and  the  disseisee,  the  person, 
thus  propounding  himself  to  be  disseised,  still  continuing  the  freeholder 
as  to  all  persons  but  the  disseisor.  The  old  books  particularly  the  Re- 
ports of  Assize,  when  they  mention  disseisins,  generally  relate  to  those 
cases  where  the  owner  admits  himself  disseised.  (See  1  Burr.  Ill; 
and  see  Bract,  lib.  4,  cap.  3.) 

As  the  processes  upon  writs  of  entry  were  superseded  by  the  assize, 
so  the  assize  and  all.jQlher _real  actions  have  been  since  superseded  by:, 
thejnodern  process  of  ejectment.  This  was  introduced  as  a  mode  of 
trying  titles  to  lands  in  the  reign  of  Henry  VH.  From  the  ease  and 
expedition,  with  which  the  proceedings  in  it  are  conducted,  it  is  now 
become  the  general  remedy  in  these  cases.  Booth,  who  wrote  about 
the  end  of  the  last  century,  mentions  real  actions  as  then  worn  out  of 
use.  It  is  rather  singular  that  this  should  be  the  case,  as  many  cases 
must  frequently  have  occurred,  in  which  a  writ  of  ejectment  was  not 
a  sufficient  remedy.  Within  these  few  years  past,  some  attempts  have 
been  made  to  revive  real  actions ;  the  most  remarkable  of  these  are  the 
case  of  Tissen  v.  Clarke,  reported  in  3  Wils.  419,  541,  and  that  of 
Carlos  and  Shuttlewood  v.  Lord  Dormer.  The  writ  of  summons  in  this 
last  case  is  dated  the  1st  day  of  December,  1775.    The  summons  to  the 


Ch.  1)  POSSESSOKY   TITLES  7 

four  knights  to  proceed  to  the  election  of  the  grand  assize,  is  dated  the 
22d  day  of  May,  1'780.  To  this  summons  the  sheriff  made  his  return; 
and  there  the  matter  rested.  The  last  instance  in  which  a  real  action 
was  used,  is  the  case  of  Sidney  v.  Perry.  In  this  case,  it  was  adjudged 
by  De  Grey,  Chief  Justice,  and  all  the  other  judges,  that  the  defendant, 
in  a  writ  of  right,  by  proving  his  actual  possession,  without  any  evi- 
dence of  his  title,  put  the  demandant  to  the  necessity  of  producing  and 
proving  his  title,  a  point,  of  which,  till  that  decision,  some  doubts  were 
entertained.  That  part  of  Sir  William  Blackstone's  Commentary 
which  treats  upon  real  actions  is  not  the  least  valuable  part  of  that  ex- 
cellent work. 

Note  (1)  to  Coke  upon  Littleton,  §  239a.2 


SMITH  v.  BURTIS. 
(Supreme  Court  of  New  York,  1810.    6  Johns.  197,  5  Am.  Dec.  218.) 
This  was  an  a,ction  of  ejectment,  brought  to  recover  the  possession 
of  a^house  and  lot  of  land,  in  the  city  of  New  York.    The  cause  was 
tiied  at  the  sittings,  held  in  the  city  of  New  York,  the  12th' of  June, 
1809,  before  Mr.  Justice  Spencer. 
The  plaintiff  proved,  that  Isaac  Teller  entered  into  possession  of  the. 

2  In  Leach  v.  Jay,  L.  R.  9  Ch.  D.  42  (1S78),  a  devisee  sought  to  recover 
possession  of  certain  lands.  The  will  provided:  "I  also  bequeath  and  de- 
vise to  him"  (the  plaintiff)  "all  real  estate  (if  any)  of'  which  I  may  die 
seised."  For  some  time  prior  to  the  death  of  the  testatrix,  the  lands  in  ques- 
tion had  been  in  possession  of  others  who  claimed  to  own  same.  The  court 
held  that  the  testatrix  was  not  "seised"  and  that  therefore  the  plaintiff  did 
not  succeed  to  the  lands.  James,  L.  J.,  said:  "This  lady,  for  some  reason 
or  motive  of  her  own,  or  for  no  reason,  chose  to  use  one  of  the  most  tech- 
nical words  in  our  law.  The  word  has  acquired  no  other  meaning  than  its 
technical  meaning ;  it  has  never  got  into  ordinary  use ;  therefore  we  are 
not  at  liberty  to  attribute  to  it  any  other  meaning  merely  because  we  sup- 
pose that  the  testatrix  did  not  know  the  true  meaning  of  the  word.  It 
has  been  argued  in  favor  of  the  appellant  that  seisin  now  has  lost  its  dis- 
tinctive meaning,  that  all  its  consequences  have  long  ceased  to  exist,  and 
therefore  that  you  cannot  predicate  of  anything  that  a  testator  died  seised 
of  it  in  any  other  sense  than  that  it  was  part  of  his  real  estate.  I  ,am  of 
opinion  that  there  are  such  things  as  seisin  and  disseisin  still.  Mr.  Joshua 
Williams  says  in  his  late  book  on  Seisin:  'If  a  person  wrongfully  gets  pos- 
session of  the  land  of  another,  he  becomes  wrongfully  entitled  to  an  estate 
In  fee  simple,  and  to  no  less  estate  in  that  land;  thus,  if  a  squatter  wrong- 
fully incloses  a  bit  of  waste  land  and  builds  a  hut  on  it  and  lives  there,  he 
acquires  an  estate  in  fee  simple  by  his  outi  wrong  in  the  land  which  he  has 
inclosed.  He  is  seised,  and  the  owner  of  the  waste  is  disseised.  It  is  true 
that,  until  by  length  of  time  the  statute  of  limitations  shall  have  confirmed 
his  title,  he  may  be  turned  out  by  legal  process.  But  as  long  as  he  remains 
he  is  not  a  mere  tenant  at  will,  nor  for  years,  nor  for  life,  nor  in  tail;  but 
he  has  an  estate  in  fee  simple.  He  has  seisin  of  the  freehold  to  him  and  his 
heirs.  The  rightful  owner  in  the  meantime  has  but  a  right  of  entry,  a 
right  in  many  respects  equivalent  to  seisin;  but  he  is  not  actually  seised,  for 
if  one  person  is  seised  another  person  cannot  be  so.'  " 

As  to  the  meaning  of  seisin  in  connection  with  covenants  for  title,  com- 
pare Marston  v.  Hobbs,  2  Mass.  433,  3  Am.  Dec.  61  (1807),  and  Mercantile 
Trust  Co.  V.  South  Park  Co.,  94  Ky.  271,  22  S.  W.  314  (1893). 


•8  ORIGINAL  TITLES  (Part  1 

premises  in  question,  about  the  year  1765,  and  erected  a  house  thereon, 
in  which  he  Hved,  with  his  family,  from  1765  to  1775,  when  he  died  in 
possession.  At  the  time  of  his  death,  he  left  five  children,  John,  his 
eldest  son,  and  heir  at  law,  Henry,  his  second  son,  one  of  the  lessors, 
Mary,  (who  intermarried  with  Peter  Thalkimer,)  Remsen,  and  Isaac, 
other  lessors  of  the  plaintiff.  The  widow  and  children  remained  on 
the  premises  until  the  British  army  took  possession  of  New  York,  when 
they  left  the  place,  and  went  to  Hudson.  John  the  eldest  son,  died  in 
1777,  aged  about  14  years;  and  Henry  was  about  8  years  old  when  his 
father  died.  After  the  British  troops  entered  the  city  of  New  York, 
(in  1776,)  they  took  possession  of,  and  occupied  the  buildings  and  prem- 
ises, and  on  application  of  one  of  the  creditors  of  Isaac  Teller,  permit- 
ted him,  for  thirty  guineas,  to  take  possession  of,  and  appropriate  to 
his  own  use,  the  materials  of  the  buildings,  which  were  sold  by  him; 
out  of  the  proceeds  thereof  he  retained  the  amount  due  to  him;  and, 
a  few  years  since,  paid  the  residue  to  Henry,  one  of  the  lessors.  The 
possession  of  the  premises  remained  vacant  during  the  war,  and  until 
1'795,  when  they  were  taken  possession  of  by  the  defendants,  or  the 
persons  under  whom  they  claim. 

The  defendants  offered  to  prove,  that  Isaac  Teller,  under  whom  the 
lessors  claimed,  had  no  title  to  the  premises  in  question ;  and  that  the 
defendants  had  a  good  and  complete  title  to  the  premises,  which  was 
not  derived  from  Isaac  Teller,  or  his  children. 

This  evidence  was  objected  to,  by  the  plaintiff's  counsel,  on  the 
ground  that  there  having  been  a  descent  cast  upon  the  immediate  heirs 
of  Isaac  Teller,  who  died  in  possession ;  and  that  the  possessory  title 
being  the  only  question  in  an  action  of  ejectment,  the  plaintiff  must  re- 
cover. 

The  judge  overruled  the  evidence  offered  by  the  defendants ;  and  a 
verdict  was  thereupon  found  for  the  plaintiff'. 

A  motion  was  made  to  set  aside  the  verdict,  for  the  misdirection  of 
the  judge,  in  overruling  the  evidence  offered  by  the  defendant,  on  the 
ground  of  a  descent  being  cast ;  and  aleo  on  account  of  newly  discov- 
ered evidence. 

Affidavits  were  read,  stating  the  evidence  discovered  since  the  trial ; 
but  as  the  opinion  of  the  court  related  only  to  the  other  ground,  it  is 
unnecessary  to  state  it. 

Kent,  C.  J.,  delivered  the  opinion  of  the  court.    The  first  and  most 

^  important  question  raised  in  this  case  is,  whether  a  descent  was  cast,^ 

upon  the  death  of  Isaac  Teller,  so  as  to  toll  the  entry  of  the  true  owner. 

The  counsel,  upon  the  argument,  entered  into  a  discussion  of  the 
general  doctrine  of  disseisin ;  but  I  do  not  think  it  will  be  necessary  to 
pursue  at  large  that  inquiry.  All  the  books  seem  to  agree  that  the  an- 
cient learning  on  this  subject  has  become  abstruse.  Disseisin,  in  the 
age  of  Bracton,  was  considered  in  an  extensive  sense,  and  far  beyond 
the  idea  which  was  first  applied  to  it.  Disseisin,  by  election,  in  opposi- 
tion to  actual  disseisin,  was  introduced  very  early,  and  became  very 


Ch.  1)  POSSESSORY   TITLES  9 

prevalent,  in  order  to  extend  the  remedy  by  writ  of  assise,  which  was 
devised  by  Glanville,  in  the  reign  of  Henry  II.  It  must,  therefore,  be 
difficult,  in  many  cases,  to  know  what  species  of  disseisin  was  intended, 
though  it  is  said  that  the  old  books,  and  particularly  the  book  of  assise, 
when  they  mention  disseisins,  generally  relate  to  disseisins  by  election. 
The  present  question  appears,  however,  to  lie  in  a  narrower  compass ; 
and  by  confining  ourselves  to  a  few  plain  and  familiar  authomies_,  we 
shall  discover  the  principle,  that  the  doctrine  of  descent  cast  applies 
only  to  a  seisin^_commencing  by  wrong,  and  founded  on  an  ouster  of 
the_true  owner.  Whatever  may  be  the  meaning  of  disseisin,  in  other 
cases,  its  meaning,  when  applied  to  the  subject  before  us,  embraces  a 
tortious  ouster.    There  must  be  a  disseisin  in  fact.    The  rightful  owner 


must  have  been  expelled,  either  by  violence,  or  by  some  act  which  the 
law  regards  as  equivalent  in  its  effects. 

"Descents  in  fee,  which  toll  entries,"  says  Littleton,  (section  385,) 
"are,  as  if  a  man  seised  of  certain  lands,  is  by  another  disseised,  and 
the  disseisor  hath  issue  and  dieth  of  such  estate  seised ;  now  the  lands 
descend  to  the  issue  of  the  disseisor,  by  course  of  law,  as  heir  unto  him. 
And  because  the  law  casts  the  lands  upon  the  issue,  by  force  of  the  de- 
scent, the  entry  of  the  disseisee  is  taken  away."  And  in  the  next  sec- 
tion, Littleton  gives  a  like  definition  of  a  descent  in  tail,  which  tolls  an 
entry.  Both  he  and  Gilbert  have  a  chapter  devoted  to  the  subject,  and 
they  always  speak  or  refer  to  a  descent  founded  on  a  seisin  commenc- 
ing by  wrong.  "In  descents  which  toll  entries,  it  behoveth,"  says  Little- 
ton, (section  387,)  "that  the  man  die  seised  in  his  demesne  as  of  fee." 
A  seisin  in  his  demesne  as  of  fee,  is  the  strongest  and  highest  estate 
which  the  subject  can  enjoy.  It  would  then  be  very  idle  to  talk  of  a 
descent  cast,  in  the  case  of  a  rightful  seisin  in  fee^  for  there  would  be 
no  ri^t  of  entrj  to  be  tolled  in  such  a  case.  The  doctrine  can  only 
exist  and  apply  in  the  case  of  a  tortious  seisin. 

At  the  common  law,  if  the  disseisor,  abator,  or  intruder,  (and  these 
are  mentioned  by  Coke,  as  the  only  wrongful  acts  of  seisin,  which  will 
cast  a  descent,)  had  died  seised  soon  after  the  wrong  done,  the  dis- 
seisee and  his  heirs  were  barred  of  their  entry.  Co.  Litt.  238,  a.  This 
was  deemed  too  harsh  a  rule,  and  the  statute  of  32  Hen.  VI II-,  c.  33, 
was  passed,  saving  the  right  of  entry  to  the  disseisee,  unless  the  dis- 
seisor had  been  in  peaceable  possession  for  five  years  next  after  the 
disseisin  by  him  committed.  This  statute  shows  pretty  plainly,  what 
species  of  disseisin  was  then  understood  as  applicable  to  this  subject. 
It  is  entitled,  "An  act  that  wrongful  disseisin  is  no  descent  in  law ;" 
and  it  recites  that  whereas  "divers  persons  have  heretofore,  by  strength, 
and  without  title,  entered  into  lands,  and  wrongfully  disseised  the 
rightful  owner,  and  so  being  seised  by  disseisin,  have  thereof  died  seis- 
ed, by  reason  of  which  dying  seised,  the  disseisee  or  such  other  persons, 
as  before  such  descent  might  have  lawfully  entered,  were  thereby  ex- 
cluded of  their  entry  and  put  to  their  action."  It  is  therefore  enacted, 
"that  the  dying  seised  of  any  such  disseisor  of  any  lands,  having  no 


10  ORIGINAL  TITLES  (Part  1 

right  or  title  therein,  should  not  be  taken  or  deemed  any  such  descent 
in  the  law,  for  to  toll  or  take  away  the  entry  of  any  person,  which,  at 
the  time  of  the  descent,  had  good  and  lawful  title  of  entry,  except,"  etc. 

The  disseisin  intended  by  this  act,  was  one  founded  on  a  tortious  ex- 
pulsion of  the  true  owner.  This  is  giving  the  term  its  primitive  and 
genuine  meaning;  and  in  this  sense  it  is  also  used,  when  applied  to  a 
descent  cast.  A  mere  entry  upon  another  is  .no,  disseisin,  unless  it  be, 
accompanied  with  expulsion,  or  ouster  from  the  freehold..  Disseisin 
jS^  is"an  estate  gained  by  wrong  and  injury ;.  and  therein  it  differs  froni_ 

dispossession,  which  may  be  by  right  or  wrong.  This  is  the  uniform 
language  of  the  best  authorities,  from  the  time  of  Littleton.  Litt.  § 
279;  Co.  Litt.  3,  b,  18,  b,  153,  b,  181,  a;  Cro.  Jac.  685;  1  Salk.  246, 
n.  2 ;  1  Burr.  109. 

This  tortious  seisin,  the  lessors  of  the  plaintiff  were  bound  to  show 
affirmatively,  if  they  would  put  themselves  upon  the  strict  and  ungra- 
cious right  of  a  descent  cast.  A_i)eaceable  entry  upon  land,  apparently, 
\^cant,  furnishes,  per  se,  no  presumption  of  wrong.  The  benign  and 
legal  intendment  is  otherwise.  According  to  Lord  Holt,  (1  Salk.  246,) 
a  bare  entry  on  another,  without  an  expulsion,  makes  such  a  seisin 
only,  that  the  law  will  adjudge  him  in  possession  that  has  the  right. 
This  court  has  frequently  recognized  the  same  rule,  tjiat  an  entry  not 
appearing  to  be  hostile,  was  to  be  considered  an  entry  under  the_  title ^ 
"3^  "of  the  true  owner.     It  lay,  then,  with  the  plaintiff  to  show  his  entry 

not  congeabie,  or  to  show  a  subsequent  disseisin ;  for  he  entered  upon 
vacant  lands.  We  may  infer  title,  from  his  ten  years'  possession,  suffi- 
cient to  put  the  tenant  upon  his  defence ;  but  we  ought  not  to  infer  a 
tortious  entry,  or  an  actual  ouster,  sufficient  to  bar  every  defence.  This 
would  be  a  most  rigorous  conclusion,  for  it  makes  tlie  ancestor  or  the 
plaintiff"  a  disseisor ;  it  tolls  the  entry  of  the  true  owner ;  it  shuts  out 
his  defence,  and  drives  him  to  his  writ  of  right,  which  final  remedy  is 
now  subject  to  the  limitation  of  1rv\'enty-five  years. 

The  subsequent  use  of  the  land  by  Teller  was  no  disseisin.  The  case 
of  Matheson  v.  Trot,  1  Leon.  209,  is  a  strong  authority  on  this  point. 
In  that  case,  Henry  Denny,  the  heir  at  law,  when  he  came  of  age, 
claimed  and  sued  out  livery,  or  restitution  of  lands,  out  of  the  hands 
of  the  feudal  lord,  who  had  seised  them  as  guardian  for  the  infant. 
He  then  leased  them  for  years,  reserving  a  rent,  and  for  years  received 
the  rents  and  profits  from  his  tenant,  and  died  so  seised.  This  was 
held  not  to  be  a  requisite  seisin  to  cast  a  descent,  though  the  court  ad- 
mitted, that  his  lessee  had  gained  a  wrongful  possession  in  fee.  If  here 
was  not,  during  all  this  time,  an  actual  pedis  possessio  by  the  heir, 
(though  the  case  says,  he  once  walked  over  the  lands  with  his  tenant,) 
yet  he  held  and  enjoyed  the  lands  by  his  tenant;  and  the  case  showed 
conclusively,  that  he  held  them  without  title,  for  the  lands  had  been 
devised  in  fee  to  his  younger  brother.  This  case,  I  think  is,  in  every 
view,  much  stronger  in  favor  of  a  descent  cast,  than  the  one  before  us. 

As  it  was,  therefore,  ruled,  at  the  trial,  that  a  descent  was  cast,  and 


Ch.  1) 


POSSESSORY   TITLES 


11 


the  evidence  offered  by  way  of  defence,  inadmissible,  the  court  are  of 
opinion,  that  there  ought  to  be  a  new  trial,  with  costs  to  abide  the  event 
of  the  suit. 

New  trial  granted.* 


SECTION  2.— EFFECTS  OF  POSSESSION 


ASHER  V.  WHITLOCK. 

(Court  of  Queen's  Bench,  1865.     L.  R.  1  Q.  B. 

Ejectment  for  a  cottage,  garden,  and  premises,  situate  at  Keysoe 
Row,  in  the  parish  of  Keysoe,  in  the  county  of  Bedford;  the  writ 
stated  that  the  female  plaintiff  claimed  possession  as  heir-at-law  of 
Mary  Ann  Williamson,  an  infant  deceased. 

The  defendant  defended  for  the  whole. 

At  the  trial  before  Cockburn,  C.  J.,  at  the  last  Bedfordshire  Spring 
Assizes,  the  following  facts  appeared  in  evidence :  About  Michaelmas, 
in  the  ye§x— LS42,  Thomas  Williamson  enclosed  from  the  waste  of  a 
manor  a  piece  of  land  by  the  side  of  the  highway ;  and  in  1850  he  en- 
closed more  land  adjoining,  and  built  a  cottage;  the  whole  being  the 
land  as  described  and  claimed  in  the  writ.  He  occupied  the  whole  till 
his  death  in  I860.  By  his  will  he  devised  the  whole  property,  describ- 
ing it  as  "a  cottage  and  garden,  in  Keysoe  Row,  in  which  I  now  dwell," 
to  his  wife  Lucy  Williamson,  for  and  during  so  much  only  of  her 
natural  life  as  she  might  remain  his  widow  anH  nnmnrnVfl ;  and  from 
and  after  her  decease,  or  second  marriage,  whichever  event  might  first 
happen,  to  his  only  child  JMarv  Ann  Williamson,  m  fee.  After  the 
death  of  Thomas  Williamson,  his  widow  remained  in  possession  with 
the  daughter,  and  in  April  1861  married  the  defendant;  and  from  that 
time  they  all  three  resided  on  the  property  till  the  death  of  the  daugh- 
ter, aged  eighteen  years,  in  February  1863.  On  her  death,  the  defendant 
and  his  wife,  the  widow  of  the  testator,  continued  to  reside  on  the  prem- 
ises ;  the  widow  died  in  May  1863,  and  the  defendant  still  continued  to 
occupy. 

The  femak  plaintiff  is  the  heir-at-law  of  the  testator's  daughter, 
Mary  Ann  Williamson.    The  writ  was  issued  11th  of  April  1865. 

These  facts  being  undisputed,  the  Chief  Justice  directed  a  verdict  for 
the  plaintiff  for  the  whole  of  the  property  claimed ;  with  leave  to  move 


3  See.  too.  Slater  v.  Rawson.  6  Mete.  (Mass.)  439  (1843). 

Section  374  of  the  New  York  Code  of  Civil  Procedure  provides  that  '^the, 

jrjghLjQjLa  person  to  the  possession  oi  real  property  is  not  impaired. or  al.-." 

fected,  by  a  descent  being  cast,  in  consequence  of  the  death  of  a  person  in 

possession  of  the  property."     Legislation  to  the  same  effect  is  found  in  a 

number  of  states.     See  1  Stimson's  Am.  St.  Law,  §  1404. 


^ 


12  ORIGINAL  TITLES  (Part  1 

to  enter  the  verdict  for  the  defendant,  on  the  ground  that  the  testa- 
tor had  no  devisable  interest  in  any  part  of  the  property. 

A  rule  nisi  was  afterwards  obtained  to  enter  the  verdict  for  the  de- 
fendant, on  the  ground  that  no  title  in  tlie  plaintiffs  was  shown  to 
either  portion  of  the  land  enclosed. 

CocKBURN,  C.  J.  I  am  of  opinion  that  this  rule  should  be  discharg- 
ed. The  defendant,  on  the  facts,  is  in  this  dilemma ;  either  his  posses- 
sion was  adverse,  or  it  was  not.  If  it  was  not  adverse  to  tlie  devisee 
of  the  person  who  enclosed  the  land,  and  it  may  be  treated  as  a  contin- 
uance of  the  possession  which  the  widow  had  and  ought  to  have  given 
up  on  her  marriage  with  the  defendant,  then,  as  she  and  the  defendant 
came  in  under  the  will,  both  would  be  estopped  from 'denying  the  title 
of  the  devisee  and  her  heir-at-law.  But  assuming  the  defendant's  pos- 
session to  have  been  adverse,  we  have  then  to  consider  how  far  it 
operated  to  destroy  the  right  of  the  devisee  and  her  heir-at-law.  Mr. 
Merewether  was  obliged  to  contend  that  possession  acquired,  as  this 
was,  against  a  rightful  owner,  would  not  be  sufficient  to  keep  out  every 
other  person  but  the  rightful  owner.  But  I  take  it  a<;  rlearly  e^tah- 
lished  that  possession  is  ^ood  against  all  the  world  except  the  person 
who  can  show  a  good  title ;  and  it  would  be  mischievous  to  change  this 
established  doctrine.  In  Doe  v.  Dyeball,  Mood.  &  M.  346  (E.  C.  L.  R. 
vol.  22),  one  year's  possession  by  the  plaintiff  was  held  good  against  a 
person  who  came  and  turned  him  out;  and  there  are  other  authorities 
to  the  same  eft'ect.  Suppose  the  person  who  originally  enclosed  the 
land  had  been  expelled  by  the  defendant,  or  the  defendant  had  obtained 
possession  without  force,  by  simply  walking  in  at  the  open  door  in  the 
absence  of  the  then  possessor,  and  were  to  say  to  him,  "You  have  no 
more  title  than  I  have,  my  possession  is  as  good  as  yours,"  surely  eject- 
ment could  have  been  maintained  by  the  original  possessor  against  the 
defendant.  All  the  old  law  on  the  doctrine  of  disseisin  was  founded 
on  the  principle  that  the_  disseisor's  title  was  good  against  all  but  the 
disseisee.  It  is  too  clear  to  admit  of  doubt  tliat,  if  the  devisor  had  been 
turned  out  of  possession  he  could_bavp_maintained  ejectment.^  What 
is  the  position  ot  the  devisee .''  There  can  be  no  doubt  that  a  man  has 
a  right  to  devise  that  estate  which  the  law  gives  him  against  all  the 
world  but  the  true  owner.  Here  the  widow  was  a  prior  devisee,  but 
durante  viduitate  only,  and  as  soon  as  the  testator  died  the  estate  be- 
came vested  in  the  widow;  and  immediately  on  the  widow's  marriage 
the  daughter  had  a  right  to  possession;  the  defendant,  however,  an- 
ticipates her,  and  with  the  widow  takes  possession.  But  just  as  he  had 
no  right  to  interfere  with  the  testator,  so  he  had  no  right  against  the 
daughter,  and  haA  she  lived  she  could  have  brought  ejectment:  .al- 
though she  died  without  asserting  her  right,  the  same  right  belongs  to 
her  heir.  Therefore  I  think  the  action  can  be  maintained,  inasmuch 
as  the  defendant  had  not  acquired  any  title  by  length  of  possession. 
The  devisor  rmghT  have  brought  ejectment,  his  right  of  possession 
being  passed  by  will  to  his  daughter,  she  could  have  maintained  eject- 


Ch.  1)  POSSESSORY   TITLES  13 

ment,  and  so  therefore  can  her  heir,  the  female  plaintiff.  We  know 
to  what  extent  encroachments  on  waste  lands  have  taken  place;  and 
if  the  lord  has  acquiesced  and  does  not  interfere,  can  it  be  at  the  mere 
will  of  any  stranger  to  disturb  the  person  in  possession  ?  I  do  not  know 
what  equity  may  say  to  the  rights  of  different  claimants  who  have  come 
in  at  different  times  without  title;  but  at  law  I  think  the  right  of  ihe 
original  possessor  is  clear.  On  the  simple  ground  that  possession  is 
good  title  agamst  all  but  the  true  owner,  I  tliink  the  plaintiffs  entitled 
to  succeed,  and  that  the  rule  should  be  discharged. 

Mellor,  J.  I  am  of  the  same  opinion.  It  is  necessary  to  distinguish 
between  the  case  of  the  true  owner  and  that  of  a  person  having  no 
title.  The  fact  of  possession  is  prima  facie  evidence  of  seisin  in  fee. 
The  law  gives  credit  to  possession  unless  explained ;  and  Mr.  Mere- 
wether,  in  order  to  succeed,  ought  to  have  gone  on  and  shown  the  tes- 
tator's title  to  be  bad,  as  that  he  was  only  tenant  at  will,  but  this  he  did 
not  do.  In  Doe  v.  Dyeball,  Mood.  &  M.  346  (E.  C.  L.  R.  vol.  22),  pos- 
session for  a  vear  only  was  held  sufficient  against  a  person  having  no 
title.  In  Doe'v.  Barnard,  13  Q.  B.  945  (E.  C.  L.  R.  vol.  66),  18  L. 
J.  (O.  B.)  306,  the  plaintiff  did  not  rely  on  her  own  possession  merely, 
but  showed  a  prior  possession  in  her  husband,  with  whom  she  was 
unconnected  in  point  of  title.  Here  the  first  possessor  is  connected  in 
title  with  the  plaintiffs ;  for  there  can  be  no  doubt  that  the  testator's 
interest  was  devisable.  In  the  common  case  of  proving  a  claim  to 
landed  estate  under  a  will,  proof  of  the  will  and  of  possession  or  re- 
ceipt oi  rents  by  the  testator  is  alwavs  prima  facie  sufficient,  without 
going  on  to  show  possession  for  more  than  twenty  years.  I  agree  with 
the  Lord  Chief  Justice  in  the  importance  of  maintaining  that  possession 
is  good  against  all  but  the  rightful  owner. 

Lush,  J.,  concurred.  -74^   ffU^^^U^  O^^. 

Rule  discharged.*  ^        ^i-^~f 

PERRY  V.  CLISSOLD. 

(Privy  Council.     [1907]  App.  Cas.   73.) 

Lord  Macnaghten.-'^  This  was  an  appeal  from  a  judgment  of  the 
High  Court  of  Australia^  dated  June  20,  1904,  reversing  a  judgment 
of  the  Supreme  Court  of  New  South  Wales.  It  raised  a  question 
under  the  Lands  for  Public  Purposes  Acquisition  Act,  1880  (44  Vict. 
No.  160),  now  superseded  by  the  Public  Works  Act,  1900,  which  con- 
solidates the  law  on  the  subject. 

The  act  of  1880  in  its  preamble  recites  that  it  is  expedient  to  make 
provision  for  the  acquisition  on  behalf  of  the  Crown  of  lands  required 

*  See,  also,  Hubbard  v.  Little,  9  Cush.  (Mass.)  475  (1S52);  Illinois  &  St. 
Louis  Railroad  &  Coal  Co.  v.  Cobb,  94  111.  55  (1879). 

5  The  statement  of  facts  is  omitted.  The  case  sufficiently  appears  from 
the  opinion. 


ecu  {XMaha^i  fO^r>9XA^Q/0x 


/  ■■  -j-it. 


14  ORIGINAL  TITLES  (Part  1 

for  certain  purposes,  including,  among  others,  "sites  for  public 
schools,"  and  "to  provide  compensation  for  lands  so  acquired." 

The  following  are  the  material  provisions  of  the  Act. 

When  the  Governor  sanctions  the  acquisition  of  any  land  for  a 
school  site  he  may,  by  notification  in  the  Gazette,  declare  that  such 
land,  if  private  property,  has  been  resumed  for  such  purposes. 

Upon  such  publication  the  land  is  forthwith  vested  in  the  Minister  of 
Public  Instruction  and  his  successors  on  behalf  of  the  Crown^  for  the 
purposes  of  the  Act,  for  an  estate  of  inheritance  in  fee  simple  in  pos- 
session freed  and  discharged  from  all  other  estates  and  interests. 

The  owners  of  the  land  or  the  persons  who,  but  for  the  provisions 
thereinbefore  contained,  would  have  been  such  owners  are  entitled  to 
receive  such  sum  of  money  by  way  of  compensation .  for  the  land  of 
which  they  have  been  deprived  under  the  Act  as  may  be  agreed  upon 
or  otherwise  ascertained  under  the  provisions  thereinafter  contained. 

The  estate  and  interest  of  every  person  entitled  to  land  so  resumed, 
or  any  portion  thereof,  and  whether  to  the  legal  or  equitable  estate 
therein,  is  by  virtue  of  the  Act  deemed  to  have  been  as  fully  and 
effectually  conveyed  to  the  Minister  as  if  the  same  had  been  conveyed 
by  means  of  the  most  perfect  assurances  in  the  law.  Every  such  estate 
and  interest  uponthe  publication  _of  such  notification  as  aforesaid  js 
taken  to  have  been  converted  intoa  claim  for  compensation  in  pursu- 
ance of  the  provisions  thereinafter  contained,  and  every  person  upon 
asserting  his  claim  as  thereinafter  provided,  and  making  out  his  title 
in  respect  of  any  portion  of  the  resumed  land,  is  entitled  to  compensa- 
tion on  account  of  such  resumption  in  manner  thereinafter  provided. 

Every  person  claiming  compensation  in  respect  of  any  land  so  re- 
sumed is,  within  ninety  days_froni  the  publication  of  such  notification 
or  at  any  time  afterwards,  within  such  time  as  a  judge  of  the  Supreme 
Court  appoints  in  that  behalf,  to  serve  a  notice  in  writing  upon  the 
Minister  and  a  like  notice  upon  the  Crown  solicitor,  "which  notice,"  jt 
is  declared,  "shall  seTTorth  the  nature  of  the  estate  or  interest  of  the 
claimant  in  such  land  together  with  anj^bstrart  of  hk  titip  " 

Section  13  is  in  the  following  terms :  "Within  sixty  days  after  the 
receipt  of  every  such  notice  of  claim  by  the  Crown  solicitor  he  shall 
forward  the  same,  together  with  his  report  thereon,  to  the  Minister, 
who  shall  thereupon  (unless  no  prima  facie  case  for  compensation  shall 
have  been  disclosed)  cause  a  valuation  of  the  land. or  of  t)-)^  p';fai-p-nr 
interest  of  the  claimant  therein  to  be  rnade  in  accordance  with  the  pro- 
visions of  this  Act,  and  shall  inform  the  claimant,  as  soon  as  practica- 
ble,  of  the  amount  of  such  valuation  by  notice  in  the  form  of  the  Sec- 
ond Schedule  hereto." 

By  notification  published  in  the  Gazette  of  July  17,  1891,  a  piece  of 
y^  .       .    land  containing  two  acres  and  three  perches  at   Canterbury,   in   the 

AJ^^  I  county  of  Cumberland,  was  resumed  for  ajpublic  school  site-  The  land 
^    I  \  was  at  the  time  in  the  possession  of  one  Fredrick  Clissold.     Notice 

of  the  resumption  was  given  to  Clissold  on  July  22,  1891  ;   but  nothing 


/. 


Ch.  1)  POSSESSORY   TITLES  15 

further  was  done  then.    Clissold  died  shortly  afterwards,  and  his  will 
was  proved  on  May  5,  1892. 

In  May,  1902,  under  an  order  of  the  Supreme  Court,  the  respondents 
who  are  the  present  trustees  of  Clissold's  will,  and  of  whom  three  are 
his  surviving  executors,  served  notice  of  their  claim  to  compensation 
in  respect  of  the  land  resumed  by  the  notification  of  July  17,  1891, 
stating  that  the  claimants  were  the  executors  of  Frederick  Clissold, 
"who  at  the  date  of  resumption  was  in  possession  of  such  land  as  the 
owner  thereof,  and  in  receipt  of  the  rents  of  such  lands,  and  had  a 
title  thereto  bv  possession." 

It  appeared  from  the  papers  which  were  forwarded  with  the  claim 
that  in  the  year  1881  Frederick  Clissold  entered  into  possession  of  the 
land,  which  was  then  open  and  vacant,  and  enclosed  it  by  a  substantial 
fencing,  and  that  ever  since  the  enclosure,  up  to  the  time  of  resump- 
tion, Clissold  held  exclusive  possession  of  the  land  without  notic£-Qf 
any  adverse  claim,  and  let  it  to  diflFerent  tenants  and  received  the  rents 
for  his  own  use  and  benefit,  and  duly  paid  all  rates  and  taxes  in  respect 
of  the  land  which  stood  in  his~riatTie  in  the  rate-books  of  the  municipal- 
ity of  Canterbury. 

The  Minister  refused  to  entertain  the  claim  to  compensation. 

The  Supreme  Court  upheld  the  view  of  the  Minister.  The  High 
Court  reversed  this  decision,  and  g^ranted  a  mandamus  requiring  the 
Minister  to  cause  a  valuation  to  be  made. 

The  only  question  on  this  appeal  was  whether  or  not  a  prima  facie 
case  for  compensation  had  been  disclosed. 

On  the  part  of  the  Minister  it  was  contended  that,  upon  the  plain- 
tiffs' own  showing,  Clissold  was  a  mere  trespasser,  without  any  estate 
or  interest  in  the  land. 

Their  Lordships  are  unable  to  agree  with  this  contention. 

It  cannot  be  disputed  that  a  person  in  possession  of  land  in  the 
assumed  character  of  owner  and  exercising  peaceably  the  ordinary 
rights  of  ownership  has  a  perfectly  good  title  against  all  the  world 
but  the  rightful  owner.  And  if  the  rightful  owner  does  not  come  for- 
ward  and  assert  his  title  by  process  of  law  within_the  period  prescribed 
by  the  provisions  of  the  Statute  of  Limitations  applicable  to  the  case, 
hjs  right  is  forever  extinguished,  amL  th^  po^^pssnry  owner  arq^J^'P'^ 
an  absolute  title. 

On  behalf  of  the  Minister  reliance  was  placed  on  the  case  of  Doe  v. 
Barnard,  13  O.  B.  945,  which  seems  to  lay  down  this  proposition,  that 
if  a  person  having  only  a  possessory  title  to  land  be  supplanted  in  the 
possession  by  another  who  has  himself  no  better  title,  and  afterwards 
bring's  an  action  to  recover  the  land,  he  must  fail  in  case  he  shows  in 
the  course  of  the  proceedings  that  the  title  on  which  he  seeks  to  re- 
cover was  merely  possessory.  It  is,  however,  difficult,  if  not  impos- 
sible, to  reconcile  this  case  with  the  later  case  of  Asher  v.  Whitlock, 
L.  R.  1  Q.  B.  1,  in  which  Doe  v.  Barnard  was  citeHl  The  judgment 
of  Cockburn,  C.  J.,  is  clear  on  the  point.     The  rest  of  the  Court  con- 


16  ORIGINAL  TITLES  (Part  1 

curred,  and  It  may  be  observed  that  one  of  the  members  of  the  Court 
in  Asher  v.  Whitlock  (Lush,  J.)  had  been  of  counsel  for  the  successful 
party  in  Doe  v.  Barnard.  The  conclusion  at  which  the  Court  arrived 
in  Doe  v.  Barnard  is  hardly  consistent  with  the  views  of  such  eminent 
authorities  on  real  property  law  as  Mr.  Preston  and  Mr.  Joshua  Wil- 
liams. It  is  opposed  to  the  opinion  of  modern  text-writers  of  such 
weight  and  authority  as  Professor  Maitland  and  Holmes,  J.,  of  the 
■  Supreme  Court  of  the  United  States. 

Their  Lordships  are  of  opinion  that  it  is  impossible  tp  say  that  no 
prima  facie  case  for  compensation  has  been  disclose d . 

They  do  not  think  that  a  case  for  compensation  is  necessarily  ex- 
cluded by  the  circumstance  that  under  the  provisions  of  the  Act  of  1900 
the  Minister  acquired  not  merely  the  title  of  the  person  in  possession  as 
owner,  but  also  the  title,  whatever  it  may  have  been,  of  the  rightful 
owner  out  of  possession,  who  never  came  forward  to  claim  the  land  or 
the  compensation  payable  in  respect  of  it,  and  who  is,  as  the  Chief 
Justice  says,  "unknown  to  this  day." 

The  Act  throughout  from  the  very  preamble  has  it  apparently  in 
contemplation  that  compensation  would  be  pavable  to  every  pergon 
deprived  of  the  land  resumed  for  public  purposes.     It  could  hardly 
have  been  intended  or  contemplated  that  the  Act  should  have  the  effect 
^  of  shaking  titles  which  but  for  the  Act  would  have  been  secure,  and 

would  in  process  of  time  have  become  absolute  and  indisputable,  or 
that  the  Governor,  or  responsible  Ministers  acting  under  his  instruc- 
tions, should  take  advantage  of  the  infirmity  of  anybody's  title  in  order^ 
to_ acquire  his  land  for  nothing.  Even  where  the  true  owner,  after 
diligent  inquiry,  cannot  be  found  the  Act  contemplates  payment  of  the 
compensation  into  Court  to  be  dealt  with  bv  a  Court  of  Equity. 

It  only  remains  for  their  Lordships  to  express  their  opinion  that 
the  valuation  to  be  made  should  be  a  valuation  of  the  land  as  at  the 
date  of  the  notification  of  resumption. 

When  the  valuation  is  made  it  will  be  for  the  claimants  to  take  such 
proceedings  as  they  may  be  advised  to  recover  the  amount,  unless  the 
Minister  thinks  fit  to  pay  them  or  to  pay  the  money  into  Court. 

Eor  these  reasons  their  Lordships  humbly  advised  His  Majesty  that 
the  appeal  should  be  dismissed,  and  ordered  the  appellant  to  pay  the 
costs  of  the  appeal.^ 

6  See  Ex  parte  Winder,  6  Ch.  D.  696  (1S77).  See,  also,  People  v.  Shearer, 
30  Cal.  645  (1866),  where  the  state  claimed  the  power  to  tax  the  possessory 
interest  of  an  occupant  of  public  land  of  the  United  States. 


'f,^%^^''» 


Ch.  1)  POSSESSORY  TITLES  IT 

SOHIER  V.  COFFIN. 

(Supreme  Judicial  Court  of  Massachusetts,  1S69.     101  Mass.  179.) 

Writ  of  entry  against  John  T.  Coffin  and  tlie  heirs  of  John  C. 
Parkinson,  to  recover  a  lot  of  land  in  Brighton.  Coffin  was  defaulted. 
Trial  in  this  court,  before  Foster,  J.,  who  reported  the  case  substantial- 
ly as  follows : 

To  show  title,  the  demandants,  among  other  evidence,  put  in  and 
proved  a  deed  of  the  demanded  premises  from  William  F.  Otis  to  John 
T.  Coffin,  dated  May  9,  1857,  and  a  m.ortgage  deed  from  said  Coffin 
to  themselves,  dated  September  12,  1857,  to  secure  the  payment  of 
$5000;  both  duly  acknowledged  and  recorded.  The  heirs  of  Parkin- 
son offered  no  evidence  of  any  title  by  deed,  or  any  conveyance  of  the 
premises,  but  claimed  title  by  adverse  possession. 

There  was  evidence  tending  to  show  that  John  C.  Parkinson  was 
in  possession  and  occupation  of  the  premises  for  many  years  prior  to 
his  death  in  January,  1857,  claiming  title,  and  that  in  1842  Coffin  knew 
that  he  claimed  title ;  that  a  few  days  after  John  C.  Parkinson's  death, 
Coffin's  agent  called  upon  Parkinson's  hpirc;  anri  desired  them  to  leave 
the  premises,  and  they  insisted  that  the  premises  were  theirs ;  that 
afterwards  and  sometime  before  giving  the  deed  under  which  the  de- 
mandants claimed,  Coffin  himself  called  upon  Parkinson's  heirs,  and 
wanted  them  to  leave  the  premises,  and  they  told  him  personally  that 
they  owned  the  land;  that  Coffin  endeavored  to  buy  them  off,  and 
they  refused  his  overtures;  and  that  the  mortgage  deed  of  September 
12,  1857,  from  Coffin  to  the  demandants,  under  which  they  claimed, 
was  executed,  acknowledged  and  delivered  in  Boston. 

At  the  close  of  the  evidence,  the  presiding  judge  proposed  to  instruct 
the  jury  on  the  effect  of  disseisin  as  follows:  "If,  after  the  death  of 
John  C.  Parkinson  while  Coffin  owned  the  fee,  the  heirs  of  Parkinson 
were  in  actual  possession  of  the  demanded  premises  claiming  a  fee,  and 
this  was  known  to  Coffin ;  and  they  continued  in  such  possession  at  the 
date  of  the  mortgage  deed  from  him  to  the  demandants;  then  Coffin 
was  disseised  so  that  notjiing  passed  by  his  deed,  and  the  demandants 
cannot  recover."  Thereupon  the  demandants  declined  to  go  to  the  jury, 
and  submitted  to  a  verdict  for  the  heirs  of  Parkinson,  and  the  jury 
found  specially  for  the  latter  upon  the  sole  ground  that  the  deed  to  the 
demandants  passed  no  title.  To  this  ruling  the  demandants  excepted, 
and  the  presiding  judge  reserved  for  the  full  court  the  question  wheth- 
er the  ruling  was  correct. 

Chapman,  C.  J.  The  demandants  claim  title  under  a  mortgage  from  I  / 
Coffin,  and  therefore  they  have  joined  Coffjn  in  the  suit,  as  they  are 
permitted  to  do  by  the  Gen.  St.  1860,  c.  140,  §  8,  though  Coffin  is  not 
a  tenant  in  possession.  The  tenants  in  possession  are  the  heirs  of 
Jolin  C.  Parkinson,  who  died  in  Tanuary.  1857.  A  few  days  after- 
Aig.Peop. — 2 


4 


s^ 


18 


ORIGINAL   TITLES 


(Part  I 


wards  the  agent  of  Coffin  called  upon  them  and  desired  them  to  leave 
the  premises.  They  refused  to  quit,  and  claimed  title.  Afterwards 
Coffin  himself  called  upon  them  and  wanted  them  to  leave  the  prem- 
ises. They  again  refused,  claiming  title.  He  endeavored  to  buy  them 
off,  and  they  refused  his  overtures.  They  were  thus  in  possession  of 
the  demanded  premises,  and  claiming  title  adversely  to  him.  There  is 
nothing  to  show  that  they  entered  under  him  or  by  his  permission.  In- 
deed it  is  stated  that  their  father  was  in  possession  for  many  years, 
claiming  title,  and  that  this  was  known  to  Coffin  in  1842.  While  they 
were  thus  in  possession,  namely,  on  September  12,  1857,  Coffin  made 
the  mortgage  to  the  demandants.  If  he  had  a  right  of  entry,  he  mi^ht 
have  entered  upon  the  land  and  there  delivered  the  deed,  ^^f^  \}\'^  title 
would  have  passed.  But  as  he  didjiot,_enter,  but  delivered  the  deed 
while  he  was  out  of  possession,  and  the  tenants  were  holding  the  land 
adversely,  his  deed  wasjjioperatwe  to  pass  the__title.  Warner  v.  Bull, 
13  Mete.  1.  All  the  grantees  could  acquire  was  a  right  to  bring  an 
action  for  possession  in  the  name  of  their  grantor.!.  Cleav eland  v. 
Flagg,  4  Cush.  76.  The  ruling  is  based  upon  the  assifrfi^iSh  that  the 
title  of  Coffin  was  good,  and  that  the  tenants  were  mere  disseisors; 
and  upon  that  assumption  it  was  correct.  Much  more  would  the  degd 
of  Coffin  to  the  demandants  be  inoperative  if  no  title  had  ever  passed 
to  Coffin;  for  in  such  case  no  action  would  lie  even  in  Coffin's  name. 
It  would  be  necessary  to  sue  in  the  name  of  Otis  or  some  other  person 
who  had  good  title. 

The  facts  stated  in  the  report  do  not  present  a  case  of  mere  disseisin 

at  the  election  of  Coffin;    but  this  was  an  actual  adverse  occupation 

.  and  holding  him  out.    See  Washb.  Real  Prop.  (3d  Ed.)  bk.  3,  c.  2,  §  7. 

Judgment  for  the  tenants  on  the  verdict.^ 

7  A.,  the  paper  title  owner  of  certain  lands,  sues  B.  in  an  action  of  Jrover 
for  the  conversion  ol  stone  and  gravel  dug  out  of  and  taken  from  said  lands. 
On  the  trial  it  develops  that  B.  has  been  in  adverse  possession  of  the  tract 
from  which  the  stone  and  gravel  were  taken,  thou"gB  lor ~a'  period  less  than 
that  of  the  statute  of  limitations.  Can  the  action  be  maintained?  Mather  v. 
Ministers  of  Trinity  Church,  3  Serg.  &  R.  (Pa.)  509,  8  Am.  Dec.  663  (1817). 

Suppose  it  had  >^^"  ^i  ^yhn  ^^""^  tnirt^n  thc>  stone  and  gravel.  Could  A.  have 
sued  hi)?  in  trespasg  quare  clausum  f regit?  See  "Wheeler  v.  Hotchkiss,  10 
Connr22o'  (1834). 
-A  very  interesting  question  is  presented  when  the  ousted  owner  recovers 
ossession  and  sues  to  recover  specifically  for  crops  and  other  things  severed 
fronfthe  land  by  tile  "adV«n^"t5^§essorr"See  Liford's  Case,  11  Co.  46b,  51b 
(161.5);  Page  v.  Fowler,  39  Cal.  412,  2  Am.  Rep.  462  (1870);  Hooser  v.  Hays, 
10  B.  Mon.  72,  50  Am.  Dec.  540  (1849). 

^y^lOAJ, /\j»^<,jgn>*^    4-^rO   ^u^u.   ^s^  />-t<^w2/5-6t^n^  Cr*-^  ) 


Ch.  1)  POSSESSORY   TITLES  19 


SECTION  3.— LAPSE  OF  TIME 


STAT.  3  EDW.  I,  c.  39  (1275). 

And  forasmuch  as  it  is  long  time  passed  since  the  writs  undernamed 
were  limited;  it  is  provided,  That  in  conveying  a  descent  in  a  writ  of 
right^  none  shall  presume  to  declare  of  the  seisin  of  his  ancestor  fur- 
ther, or  beyond  the  time  of  King  Richard,..uncle  to  King  Henry,  father 
to  the  King  that  now  is;  and  that  a  writ  of  Novel  disseisin,  of  Parti- 
tion, which  is  called  Nuper  obiit,  have  their  limitation  since  the  first 
voyage  of  King  Henry,  father  to  the  King  that  now  is,  into  Gascoin. 
And  that  writs  of  Mortdancestor,  of  Cosinage,  of  Aiel,  of  Entry,  and 
of  Nativis,  have  their  limitation  from  the  coronation  of  the  same  King 
Henry,  and  not  before.  Nevertheless  all  writs  purchased  now  by 
themselves,  or  to  be  purchased  between  this  and  the  Feast  of  St.  John, 
for  one  year  complete,  shall  be  pleaded  from  as  long  time,  as  hereto- 
fore they  have  been  used  to  be  pleaded. 


STAT.  21  JAC.  I,  c.  16,  §§  1,  2  (1623). 

I.  For  quieting  of  men's  estates,  and  avoiding  of  suits,  be  it 
enacted  by  the  King's  most  excellent  majesty,  the  lords  spiritual 
and  temporal,  and  commons,  in  this  present  Parliament  assembled, 
That  all  writs  of  formedon  in  descender,  formcdon  in  remainder,  and 
formedon  in  reverfor,  at  any  time  hereafter  to  be  sued  or  bought,  of  or 
for  any  manors,  lands,  tenements  or  hereditaments,  whereunto  any 
person  or  persons  now  hath  or  have  any  title,  or  cause  to  have  or  pur- 
sue any  such  writ,  shall__be  sued  and  takeii  ^vithin  twejity  years  next 
after  the  end  of  this  present  session  of  Parliament;  and  after  the  said 
twenty  years  expired,  no  such  person  or  persons,  or  any  of  their  heirs, 
shall  have  or  maintain  any  such  writ,  of  or  for  any  of  the  said  manors, 
lands,  tenements  or  hereditaments ;  (2)  and  that  all  writs  of  formedon 
in  descender,  formedon  in  remainder,  and  formedon  in  reverter,  of  any 
manors,  lands,  tenements,  or  other  hereditaments  whatsoever,  at  any 
time  hereafter  to  be  sued  or  brought  by  occasion  or  means  of  any  title 
or  cause  hereafter  happening,  shall  be  sued  and  taken  within  twenty 
years  next  after  the  title  and  cause  of  action  first  descended  or  fallen, 
and  at  no  time  after  tlie  said  twenty  years ;  (3)  and  that  no  person  or 
persons  that  now  hath  any  right  or  title  of  entry  into  any  manors, 
lands,  tenements  or  hereditaments  now  held  from  him  or  them,  shall 
thereinto  enter,  but  within  twenty  years  next  after  the  end  of  this 
present  session  of  Parliament,  or  within  twenty  years  next  after  any 
other  title  of  entrv^  accrued :    (4)  and  that  no  person  or  persons  shall 


20 


ORIGINAL  TITLES 


(Part  1 


C^nr^K  i 


4  -,»^  ^^^^^ 


-.^^-V-t-'*-^ 


at  any  time  hereafter  make  any  entry  into  any  lands,  tenements  or 
hereditaments,  but  within  twenty  years  next  after  his  or  their  right 
or  title  which  shall  hereafter  first  descend  or  accrue  to  the  same ;  and 
in  default  thereof,  such  persons  so  not  entering,  and  their  heirs,  shall 
be  utterly  excluded  and  disabled  from  such  entry  after  to  be  made; 
any  former  law  or  Statute  to  the  contrary  notwithstanding. 

II.  Provided  nevertheless,  That  if  any  person  or  persons,  that  is  or 
shall  be  entitled  to  such  writ  or  writs,  or  that  hath  or  shall  have  silch 
right  or  title  of  entry,  be  or  shall  be  at  the  time  of  the  said  right  or 
title  first  descended,  accrued,  come  or  fallen,  within  the  age  of  one  and 
twenty  years,  feme  covert,  non  compos  mentis,  imprisoned  or  beyond 
the  seas,  that  then  such  person  or  persons,  and  his  or  their  heir  and 
heirs,  shall  or  may,  notwithstanding  the  said  twenty  years  be  expired, 
bring  his  action,  or  make  his  entry,  as  he  might  have  done  before  this 
Act ;  (2)  so  as  such  person  and  persons,  or  his  or  their  heir  and  heirs, 
shall  within  ten  years  next  after  his  and  their  full  age,  discoverture, 
coming  of  sound  mind,  enlargement  out  of  prison,  or  coming  into  this 
realm,  or  death,  take  benefit  of  and  sue  forth  the  same,  and  at  no  time 
after  the  said  ten  years. 


HOW.  ANN.  ST.  MICH.  1913,  c.  383. 

Sec.  1.  After  the  thirty-first  day  of  December,  in  the  year  of  our 
Lord  eighteen  hundred  sixty-three,  no  person  shall  bring  or  maintain 
any  action  for  the  recovery  of  any  lands,  or  the  possession  thereof,  or 
make  any  entry  thereupon,  unless  suclLaction  is  commenced  or  entry 
made  within  the  time  herein  limited  therefor,  after  the  right  to  make 
such  entry  or  to  bring  such  action  shall  have  first  accrued  to  the  plain- 
tiff, or  to  some  person  through  whom  he  claims,  to-wit: 

First.  Within  five  years,  where  the  defendant  claims  title  to  the  land 
in  question,  by  or  through  some  deed  made  upon  a  sale  thereof  by  an 
executor,  administrator  or  guardian,  or  by  a  sheriff,  or  other  proper 
ministerial  officer,  under  the  order,  judgment,  decree  or  process  of  a 
court,  or  legal  tribunal  of  competent  jurisdiction  within  this  state,  or 
by  a  sheriff  upon  a  mortgage  foreclosure  sale ;  or  through  a  devise  in 
any  will  which  shall  have  been  probated  in  this  state  for  fifteen  years, 
during  which  period  no  suit  in  chancery  has  been  brought  to  test  the 
validity  of  such  devise :  Provided,  that  in_cases  where  such  fifteen  year 
period  has  already  elapsed  such  rights  of  entry  or  action  shall  be  barred 
after  two  years  from  the  passage  hereof,  or  in  case  such  right  has  not 
accrued,  then  after  two  years  from  the  accruing  thereof ; 

Second.  Within  ten  years,  where  the  defendant  claims  title  under  a 
deed  made  by  some  officer  of  this  state,  or  of  the  United  States,  au- 
thorized to  make  deeds  upon  the  sale  of  lands  for  taxes  assessed  and 
levied  within  this  State ; 

Third.  Within  fifteen  years  in  all  other  cases. 


Ch.  1) 


POSSESSORY  TITLES 


21 


Sec.  5.  If  at  the  time  when  any  right  of  entry,  or  of  action,  as 
aforesaid,  shall  first  accrue  or  have  accrued,  the  person  entitled  to  such 
entry  or  action  shall  be,  or  shall  have  been,  within  the  age  of  twenty- 
one  years,  or  a  married  woman,  insane,  or  imprisoned,  or  absent  from 
the  United  States,  unless  within  one  of  the  British  provinces  of  North 
America,  such  person,  or  any  one  claiming  from,  by  or  under  him, 
may  make  such  entry,  or  bring  such  action,  at  any  time  within  five 
years  after  such  disability  shall  be  or  shall  have  been  removed,  al- 
though the  time  limited  therefor  in  the  first  section  of  this  chapter  may 
have  expired. 


HUGHES  v.  GRAVES. 

(Supreme  Court  of  Vermont,  1867.    39  Vt.  359,  94  Am.  Dec.  331.) 

This  cause  was  an  act  of  trespass  quare  clausum  fregit.  with  counts 
in  trespass  on  the  case  joined  agreeably  to  the  statute.  The  action,  by 
the  agreement  of  the  parties,  was  referred,  to  be  decided  according  to 
law,  and  the  defendant  filed  exceptions  to  the  report  of  the  referees. 
On  the  hearing  upon  the  said  report  and  exceptions  at  the  March 
Term,  1866,  Kellogg,  J.,  presiding,  the  court,  pro  forma,  decided  that 
the  plaintiff  was  entitled  to  recover  of  the  defendant  the  sum  of  ten 
dollars  for  his  damages,  as  stated  in  the  report,  and  rendered  judgment 
in  favor  of  the  plaintiff  on  the  report  accordingly,— to  this  decision  and 
judgment  the  defendant  excepted. 

The  referees  reported  as  follows :  "The  plaintiff  and  defendant,  are 
severally  the  owners  and  occupiers  of  adjacent  lots  of  land  in  the  vil- 
lage of  Fairhaven,  both  lots  being  originally  parcels  of  an  entire  lot 
and  each  party  deriving  title  to  his  lot  from  a  common  source.     The 
west  line  of  the  plaintiff's  lot,  as  shown  by  his  title  deeds,  runs  from 
the  northwest  corner  of  his  dwelling  house,  southerly  to  the  northwest 
corner  of  the  Whipple  lot.    This  line  formed  the  eastern  boundary  of 
ancient  highway,  discontinued  more  than  fifty  years  since,  running  over 
the  lot  of  the  defendant.    Joshua  Quenton  an  intermediate  grantgr  of 
the  plaintiff,  obtained  his  title  to  the  lot  in  1806,  and  he  and  his  heirs  /  | 
owned  and  occupied  it  until  May,  1847.    During  this  period,  the  Quen-  |  ^ 
tons  enclosed  with  a  fence  a  strip  of  land  about  ten  feet  wide  at  the  j  '^ 
north  end,  which  extended  southerly  and  adjoining  the  plaintiff's  west    • 
line  from  the  said  northwest  corner  of  the  plaintiff's  dwelling  house,  to 
and  beyond  the  south  line  of  the  defendant's  lot  taken  from  said 
ancient  highway,  making  a  portion  of  their  door  yard,  and  continued  to      j 
occupy  peaceably  and  adversely  claiming  it  as  their  own  for  mnrp  th-an      j 
fifteen  years.    In  the  fall  of  1847  an  intermediate  grantor  of  the  de-^ 
fendant,  claims  this  strip  of  land,  sawed  the  fence  in  two  where  the_^ 
south  line  of  the  defendant's  lot  would  strike  it.     But  the  fence  after' 
two  or  three  months  was  rebuilt  by  the  plaintiff's  grantor  and  the  occu- 
pation in  them  continued  till  March,  1861,  as  the  fence  was  still  stand- 


f^-^' 


-'A.  /C-V 


yl 


22  ORIGINAL  TITLES  (Part  1 

ing  when  the  plaintiff  took  possession  under  his  deed,  and  when  the 
defendant  purchased  his  lot  in  April,  1862,  he  claimed  it  and  in  the 
summer  of  1862  erected  a  store  which  extended  eastward  within  about 
eight  inches  of  the  plaintiff's  dwelling  house  and  covered  not  only  a 
portion  of  the  strip  of  land  so  enclosed  by  the  Quentons  taken  from 
the  old  highway  and  the  plaintiff's  lot,  but  also  a  small  portion  of  land 
included  within  the  boundaries  of  the  plaintiff's  lot.  None  of  the  deeds 
prior  to  the  deed  of  Olive  Kelsey  to  I.  Davey,  of  March  23d,  1860,  by 
and  through  which  the  plaintiff  claims  title  to  his  lot,  in  their  bound- 
aries included  the  piece  of  land  enclosed  by  Quenton  and  taken  from 
said  old  highway,  and  which  actually  formed  part  of  the  door  yard  to 
the  plaintiff's  house.  If  the  court  shall  be  of  opinion  that  the  plaintiff 
takes  nothing  by  Quenton's  possessory  title  because  the  land  so  claimed 
was  not  included  in  the  boundaries  of  his  deed,  then  we  only  find  for 
the  plaintiff  to  recover  of  the  defendant  seven  dollars  damages  and 
his  costs,  otherwise  we  find  for  the  plaintiff  to  recover  of  the  defend- 
ant ten  dollars  damages  and  his  cost." 

fi  Steele,  J.  The  plaintiff  is  in  actual  possession  and  by  his  deed  from 
'Plive  Kelsey,  is  entitled  to  the  benefit  of  her  possession.  Her  posses- 
sion was  prior  to  any  possession  by  the  defendant  or  his  grantors.  The 
plaintiff"  will  therefore  maintain  this  action  of  trespass  as  against  the  de- 
fendant by  virtuej)f  mere  prior  possession,  unless  the  defendant  has 
a  right  to  the  possession.  It  is  then  the  defendant's  right  and  not  the 
plaintiff's  which  we  are  required  to  examine.  The  defendant  shows  a 
faultless  chain  of  title  on  paper,  but  it  turns  out  he  does  not  own  the 
land.  One  Quenton  acquired  the  ownership  by  fifteen  years  possession 
adverse  to  the  defendant's  grantors.  The  defendant's  chain  of  deeds 
represents  nothing  in  the  disputed  l&nd  except  what  his  grantors  lost 
and  Quenton  gained.  If  Quenton's  title  had  been  by  deed  from  the 
defendant  or  his  grantors,  it  is  clear  the  defendant  could  not  lawfully 
have  disturbed  the  plaintiff's  prior  possession.  Quenton  had  no  deed, 
but  his  adverse  possession  for  the  statutory  period  gave  him  an  abso- 
lute indefeasible  title  to  the  land  against  the  whole  world  on  which 
he  could  either  sue  or  defend  as  against  the  former  owner.  That  being 
the  case  is  there  sufficient  virtue  left  in  the  defendant's  paper  title  to 
warrant  him  in  disturbing  the  plaintiff's  possession.  Under  the  present 
English  statute  of  limitations  it  is  settled  there  would  not  be.  The  case 
would  stand  precisely  as  if  the  defendant  or  his  grantors  had  conveyed 
to  Quenton.  The  plaintiff  would  be  liable  to  be  interrupted  in  his  pos- 
session only  by  Quenton  or  some  person  under  him.  Holmes  v.  New- 
lands,  39  E.  C.  L.  48,  (11  A.  &  E.  44.)  In  Jukes  v.  Sumner,  14  Mees. 
&  Welsby,  41,  Parke,  B.,  remarking  upon  the  present  English  statute 
3  and  4  W.  IV,  ch.  27,  says  the  effect  of  the  act  is  to  make  a  parlia- 
mentary conveyance  of  the  land  to  the  person  in  possession  after  the 
period  of  twenty  years  has  elapsed.  The  several  English  statutes,  and 
their  supposed  points  of  difference,  are  commented  upon  in  2  Smith's 


Ch.  1)  POSSESSORY  TITLES  23 

Lead.  Cases,  469,  559,  et  passim,  and  the  case  Fenner  v.  Fisher,  Cro. 
Eliz.  288,  is  cited  in  Holmes  v.  Newlands,  ubi  supra,  as  an  authority 
under  the  previous  statutes  against  the  apphcation  to  these  statutes  of 
the  full  extent  of  the  rule  applied  to  the  statute  of  William  IV. 

Any  extended  discussion  of  these  English  statutes  would  be  unprof- 
itable here  for  our  statute,  though  mainly  borrowed  at  the  outset  from 
the  statute  of  James,  was  somewhat  modified  when  transferred  to  Ver- 
mont, and  has  been  materially  altered  in  form  in  passing  through  the 
several  revisions  to  which  our  laws  have  been  subjected.  It  now  pro-  '^t^j^^^^v-JS^ 
vides  after  the  section  relating  to  actions  that,  "no  person  having  right  'i^Cc-^K^.^^Cc 
or  title  of  entry  into  houses  or  lands  shall  thereinto  enter  but  within 
fifteen  years  next  after  such  right  of  entry  shall  accrue."  The  first 
section  takes  away  the  remedy,  and  the  second  the  right.  G.  S.  p.  442, 
§.§  1  and  2.  The  title  is  vested  in  the  adverse  holder  for  the  statu- 
tory period,  or  as  is  often  said,  "the  adverse  possession  ripens  into 
title."  As  a  natural  consequence  the  former  owner  is  divested  of  all 
the  new  owner  acquires.  This  interpretation  giving  to  adverse  pos- 
session for  fifteen  years  the  effect  of  a  conveyance  best  accords  with 
the  other  well  settled  doctrines  upon  the  subject  of  limitations  as  ap- 
plied to  real  property.  A  covenant  to  convey  perfect  title  is  satis-  ,. 
fied  by  conveying  a  title  acquired  under  the  statute.  In  this  country, 
as  in  England,  an  agreement  made  after  the  lapse  of  the  statutory 
period  to  waive  the  benefit  of  the  statute  is  not  eft'ective,  but  the  title 
remains  in  the  party  who  has  acquired  it  under  the  statute,  notwith- 
standing his  waiver,  until  he  conveys  it  back  with  all  the  solemnities 
required  in  any  deed  of  land.  In  language  of  the  books,  "by  analog}' 
to  the  statute  of  limitations  we  presume  a  grant  of  incorporeal  rights^ -^ 
after  adverse  uses  for  fifteen  years."  It  would  certainly  be  an  artifi-  _  I 
cial  construction  of  the  statute  which  would  make  it  a  mere  bar  to  the  -^  * 
owner's  right  against  the  person  only  who  occupied  adversely.  It  re-  -^  "pc^^ 
lates  to  the  rights  of  the  party  to  the  land.  It  makes  no  reference  to  .x^^^A/f 
persons. 

In  this  case,  if  the  plaintiff's  enjoyment  of  the  land  subjects  him 
to  an  action  or  entry  by  Ouenton,  on  the  ground  that  Quenton  and  not 
the  defendant  is  the  true  owner,  it  ought  not  at  the  same  time  so  sub- 
ject him  to  action  or  entry  by  the  defendant,  on  the  ground  that  the 
defendant  is  the  true  owner  of  the  land.  We  are  satisfied  that  no  title 
remains  in  the  defendant,  and  that  under  our  statute,  he  has  no  right 
to  the  possessioa.  It  has  been  held  that  a  plaintiff  in  possession  with- 
out right  could  maintain  trespass  against  even  the  true  owner  for  a 
disturbance,  while  the  right  of  possession  was  in  a  third  person  by 
lease  from  the  owner.  Phillips  v.  Kent  &  Miller,  23  N.  J.  Law,  155. 
Here  neither  the  right  of  possession  nor  the  ownership  was  in  the  de- 
fendant. 

The  plaintiff  claims  that  upon  a  correct  construction  of  the  deeds  he 
has  Quenton's  title.    This  point  we  have  not  decided.    The  plaintiff's 


l/'/f 


u^ 


24  ORIGINAL  TITLES  (Part  1 

prior  possession  will  enable  him  to  recover  as  against  the  defendant 
whose  grantors  suffered  Quenton  to  acquire  the  land  by  adverse  pos- 
session for  the  statutory,  period.    Judgment  affirmed.* 

1 — 

DOE  ex  dem.  GOODY  v.  CARTER. 
(Court  of  Queen's  Bench,  1847.     9  Q.   B.  863.) 

Ejectment  for  a  cottage,  garden,  &c.,  in  Essex.  Demise,  8th  Janu- 
ary, 1845. 

On  the  trial,  before  Coleridge,  J.,  at  the  Essex  Summer  Assizes, 
1845,  it  appeared  that  the  defendant  was  the  widow  of  John  Carter, 
who  died  in  1834,  being  then  occupier  of  the  premises,  which  he  had 
held,  as  after  mentioned,  for  a  period  short  of  twenty-one  years;  and 
the  defendant  had  occupied  thern  ever  snigg.  The  otner  material~facts 
(as  stated  in  the  judgment  of  the  Court  delivered  this  day)  were  as 
follows.  Robert  Carter,  the  father  of  John,  purchased  the  premises 
(amongst  others)  from  one  Havens,  and  was  let  into  possession;  but, 
as  he  did  not  pay  all  the  purchase  money,  no  conveyance  was  executed 
till  the  14tli  December,  1824,  some  years  after  the  purchase.  In  the 
meantime  the  father  had  let  his  son  John,  the  husband  of  the  defend- 
ant, into  possession  of  part  of  the  premises  as  tenant  at  will  without 
paying  any  rent._  The  father  afterwards  mortgaged  the  whole,  on  23d 
March,  1829,  for  a  term  of  years,  now  vested  in  the  lessor  of  the  plain- 
tiff. The  learned  Judge  directed  the  jury  that,  if  they  believed  John 
Carter,  the  son,  to  have  entered  as  tenant  at  will  more  than  twenty-one 
years  before  the  day  of  the  demise  laid  in  the  declaration,  this  action 
was  barred  by  Stat.  3  &  4  W.  IV,  c.  27  (sections  2,  7).«  Verdict  for  de- 
fendant.   Lush  in  the  ensuing  term  obtained  a  rule  nisi  for  a  new  trial 

8  Premises  were  leased  to  A.  for  89  years.  Shortly  after  the  lease  was 
made,  G.  entered  into  possession  and  continued  therein  adversely  to  A.  for  40 
years,  when  G^as_signed  the  term  to  defendant.  The  rent  was  regularly  paTcl 
by^.  during  the  40  years.  In  an  action  by  the  present  owner  of  the  rever- 
sion for  breach  of  a  covenant  to  repair  contained  in  the  original  lease  to  A., 
it  was  held  that  defendant  was  not  liable  upon  covenants  in  said  lease. 
Tichborne  v.  Weir.  4  R.  26,  67  L.  T.  735  (1S9.3).  Compare  Re  Nisbet  and 
Potts'  Contract,  [1905]  1  Ch.  391,  where  a  restriction  under  the  doctrine  of 
Tulk  V.  Moxhay,  2  Phillips,  774  (1848),  was  held  enforceable  against  one  who 
had  acquired  ownership  by  adverse  possession. 

As  to  „an  adverse  possessor  acquiring  a  right  of  way  by  necessity  where 
the  property  held  adversely  was  surrounded  by  other  lands  of  the  paper  title 
owner,  see  Wilkes  v.  Greenway,  6  T.  L.  R.'449  (1890).^ 

8  Those  sections  provided  as  follows: 

"II.  And  be  it  further  enacted,  that  after  the  31st  day  of  December,  1833, 
no  person  shall  make  an  entry  or  distress,  or  bring  an  action  to  recover  any 
land  or  rent  but  within  twenty  years  next  after  the  time  at  which  the  right 
to  make  such  entry  or  distress,  or  to  bring  such  action,  shall  have  first  ac- 
crued to  some  person  through  whom  he  claims ;  or  if  such  right  shall  not 
ha>.e  accrued  to  any  person  through  whom  he  claims,  then  within  twenty 
yea:.'s  next  after  the  time  at  which  the  right  to  make  such  entry  or  distress 


Ch.  1)  POSSESSORY   TITLES  25 

on  the  grounds  of  misdirection,  and  that  the  verdict  was  against  the 
weight  of  evidence.     Cur.  adv.  vult. 

Lord  Denman,  C.  J.,  now  dehvered  the  judgment  of  the  Court. 

This  rule  was  moved  for  on  two  grounds ;  misdirection,  and  that  the 
verdict  was  against  evidence.  As  to  the  latter,  we  think  that  there  was 
abundant  evidence  to  show  that  the  defendant's  husband  John  Carter 
entered  into  possession  of  all  the  premises  sought  to  be  recovered,  as 
tenant  at  will  to  his  tatlier,  more  than  twenty-one  years  before  the 
bringing  of  this  ejectment,  which  in  truth  was  the  only  question  for 
the  jury. 

The  case,  therefore,  depends  on  the  question  whether  the  learned 
Judge  misdirected  the  jury.  The  facts  were:  [His  Lordship  here 
stated  them  as  they  appear  ante.]  Under  these  circumstances,  it  was 
contended  for  the  lessor  of  the  plaintiff  that,  as  the  father  was  him- 
self tenant  at  will  to  Havens  till  14th  December,  1824,  when  that  ten- 
ancy w^as  determined  by  the  execution  of  the  conveyance,  the  ten- 
ancy at  will  subsisting  between  the  father  and  son  was  determined  at 
the  same  time.  We  do  not  think  that  consequence  followed,  but  are 
of  opinion  that  the  conveyance  to  the  father  had  no  operation  on  the 
tenancy  at  will  between  him  and  the  son..  Again,  it  was  contended 
that  the  mortgage  by  the  father  in  1829  operated  as  a  determination  of 
the  will.  Assuming  this  to  be  so,  still  the  son  would  thereby  become 
tenant  by  sufferance,  and  the  twenty  years  under  the  late  statute  3  &  4 
W.  IV,  c.  27,  having  begun  to  run  long  before,  would  continue  to  run 
unless  a  new  tenancy  at  will  or  for  some  other  term  were  created  ;  Doe 
dem.  Bennett  v.  Turner,  7  M.  &  W.  226,  Turner  v.  Doe  dem.  Bennett, 
9  M.  &  W.  643;  and,  indeed,  the  same  observation  would  apply  if  the 
conveyance  in  1824  were  treated  as  a  determination  of  the  will.  Now 
there  was  no  evidence  in  this  case  from  which  the  jury  could  .djaw 
the  conclusion  tliat  a  new  tenancy  between  the  father. and  the  son  had 
been  created  at  any  time  within  twenty  years  before  the  bringing  of 
this  ejectment:  and,  therefore,  the  determination  of  the  will  of  the 
.  father  either  in  1824  or  in  1829  is  not,  in  truth,  material. 

Upon  the  whole,  we  are  of  opinion  that  the  learned  Judge  was  right 
in  telling  the  jury  that,  if  they  believed  the  son  to  have  entered  as  ten- 
ant at  will  more  than  twenty-one  years  before  the  8th  of  January  1845 
(the  day  of  the  demise  in  the  declaration  of  ejectment),  the  statute  3 

or  to  bring  such  action  shall  have  first  accrued  to  the  person  making  or 
bringing  the  same. 

"VII.  And  be  it  further  enacted,  that  when  any  person  shall  be  in  pos- 
session or  in  receipt  of  the  profits  of  any  land,  or  in  the  receipt  of  any  rent, 
as  tenant  at  will,  the  right  of  the  person  entitled  subject  thereto,  or  of  the 
person  through  whom  he  claims,  to  make  an  entry  or  distress  or  bring  an 
action  to  recover  such  land  or  rent,  shall  be  deemed  to  have  first  accrued, 
either  at  the  determination  of  such  tenancy  or  at  the  expiration  of  one  year 
next  after  the  commencement  of  such  tenancj;^  at  which  time  such  tenancy 
shall  be  deemed  to  have  determined;  provided  always,  that  no  mortgagor  or 
cestui  que  trust  shall  be  deemed  to  be  a  tenant  at  will,  within  the  meaning 
of  this  clause,  to  his  mortgagee  or  trustee." 


CX^^fu^    i2--i.»A  pv^^Ji^     r:        X^C/fM-.A-v^^c*^ 


26  ORIGINAL  TITLES  (Part  1 

&  4  W.  IV,  c.  27,  was  a  bar  to  the  action ;  and  that  the  jur>^  were  right 
in  finding-  that  he  did  so  enter.    The  rule  for  a  new  trial  must,  there- 
fore, be  discharged. 
Rule  discharged.^" 


DOE  ex  dem.  CARTER  v.  BARNARD. 
(Court  of  Queen's  Bench,  1849.    13  Q.  B.  945.) 

Ejectment  for  a  cottage  in  Essex.    Demise,  13th  May,  1848. 

On  the  trial,  before  Coltman,  J.,  at  the  Essex  Summer  Assizes,  1848, 
it  appeared,  from  the  evidence  given  for  the  lessor  of  the  plaintiff,  that 
in  1815  one  Robert  Carter  purchased  the  premises,  and  was  let  into 
possession ;  but,  as  he  did  not  pay  all  the  purchase  money  until  1824, 
no  conveyance  was  executed  till  that  time.  Robert  Carter,  immediately 
after  his  purchase  in  1815,  allowed  his  son  John  to  occupy  the  prem- 
ises rent  free  as  tenant  at  will;  and  he  continued  so  to  occupy  until 
1834,  when  he  died,  leaving  a  widow,  who  was  the  lessor  of  the  plain- 
tiff, and  a  son  and  other  children.  Robert  Carter,  the  father,  was  at 
that  .time  still  living.  The  lessor  of  the  plaintiff  had  occupied  from 
the  time  of  her  husband's  death,  until  a  short  time  before  the  present 
action  was  brought  The  defendant  claimed  under  a  mortgage  made 
by  Robert  Carter  in  1829.  For  the  defendant  it  was  contended,  that, 
assuming  a  title  to  have  been  shewn  in  John  Carter,  the  lessor  of  the 
plaintiff  could  not  recover.  The  learned  Judge  directed  a  verdict  for 
the  plaintiff,  and  reserved  leave  to  the  defendant  to  move  to  enter  a 
nonsuit. 

Cur.  adv.  vult. 

Patteson,  J.,  now  delivered  the  judgment  of  the  Court. 

The  lessor  of  the  plaintiff  proved  no  title,  but  relied  on  long  posses- 
sion ;  viz.  her  own  for  thirteen  years,  and  her  husband's  before  her  for 
eighteen  years ;  but,  in  so  doing,  she  shewed  that  her  husband  left  sev- 
eral children,  one  of  whom  was  called  as  a  witness.  If  the  husband's 
possession  raised  a  presumption  that  he  was  seised  in  f ee^  that  fee  must 
have  descended  on  his  child,  and,  of  course,  the  lessor  of  the  plaintiff 
f  rnust  tail.     But  she  contends  that,  because  the  husband's  possession 

^  k-^  was  for  less  than  twenty  years,  no  presumption  of  a  seisin  in  fee  arises  ; 
Jifif^  ^  that  she  is  entitled  to  tack  on  her  own  possession  to  his ;  and  then  that 
7^  the  34th  section  of  Stat.  3  &  4  W.  IV,  c.  27,  which  enacts  "that  at  the 

^  determination  of  the  period  limited  by  this  Act  to  any  person  for  mak- 

^  ing  an  entry  or  distress,  or  bringing  any  writ  of  quare  impedit  or  other 

action  or  suit,  the  right  and  title  of  such  person  to  the  land,  rent,  or 
advowson  for  the  recovery  whereof  such  entry,  distress,  action,  or 
suit  respectively  might  have  been  made  or  brought  within  such  period, 

10  Willis  V.  Earl  Howe  [1S93]  2  Cli.  545,  553;  Kipp  v.  The  Inc.  Synod, 
etc.,  33  U.  C.  Q.  B.  220  (1873),  ace.  Compare  Dixon  v.  Gayfere,  17  Beav.  421 
(1853) ;    Ryerse  v.  Teeter,  44  U.  C.  Q.  B.  8  (1S7S). 


Ch.  1)  POSSESSORY   TITLES  27 

shall  be  extinguished,"  has  put  an  end  to  the  right  and  title  of  all  per- 
sons, and  transferred  the  estate  to  her.  If  she  had  been  defendant  in 
an  action  of  ejectment,  no  doubt  the  non-possession  of  the  lessor  of  the 
plaintiff,  evidenced  by  her  husband's  and  her  own  consecutive  posses- 
sion for  more  than  twenty  years,  would  have  entitled  her  to  the  ver- 
dict on  the  words  of  the  2d  section  of  the  Act,  without  the  aid  of  the 
34th  section.  Therefore  it  is  said  that  the  34th  section  must  have  some 
further  meaning,  and  must  transfer  the  right.  Probably  that  would 
be  so,  if  the  same  person,  or  several  persons,  claiming  one  from  the 
other  by  descent,  will  or  conveyance,  had  been  in  possession  for  the 
twenty  years.  But  this  lessor  of  the  plaintiff  showed  nothing-  tn  con- 
nect her  possession  with  that  of  her  husband  by  right  of  any  sort :  and, 
if  she  be  right  m  her  construction  of  the  34th  section,  the  same  conse- 
quence would  follow  if  twenty  persons  unconnected  with  each  other 
had  been  in  possession,  each  for  one  year,  consecutively  for  twenty 
years :  yet  it  would  be  impossible  to  say  to  which  of  the  twenty  per- 
sons the  34th  section  has  transferred  the  title.  Without  the  aid  of  this 
statute  twenty  years'  possession  gave  a  prima  facie  title  against  every 
one,  and  a  complete  title  against  a  wrongdoer  who  could  not  shew  any 
right,  even  if  such  wrongdoer  had  been  in  possession  many  years ;  pro- 
vided they  were  less  than  twenty ;  Doe  dem.  Harding  v.  Cooke,  7  Bing. 
346;  and  the  effect  of  the  34th  section  would  probably  be  to  givejthe 
right  to  the  possessor  for  twenty  years,  even  against  the  party  in  wh o m 
the  legal  estate  formerly  was,  and,  but  for  the  Act,  would  still  be, 
where  he  had  not  obtained  the  possession  till  after  the  twenty  years ; 
but  then  we  apprehend,  as  before  stated,  that  such  twenty  years'  pos- 
session must  be  either  by  the  same  person  or  several  persons  claiming 
one  from  the  other,  which  is  not  the  case  here. 

The  lessor  of  the  plaintiff  must  therefore  rely  on  her  own  possession 
for  thirteen  years  as  sufficient  against  the  defendant  who  has  turned 
her  out  and  shews  no  title  himself.  According  to  the  case  of  Doe  dem. 
Hughes  v.  Dyball,  Moo.  &  M.  346,  that  possession  for  thirteen  years 
would  be  sufficient;  for  in  that  case  the  lessor  of  the  plaintiff  shewed 
only  one  year's  possession,  and  yet  Lord  Tenterden  said,  "That  does 
not  signify;  tliere  is  ample  proof ;  the  plaintiff"  is  in  possession,  and  you 
come  and  turn  him  out:  .you  must  shew  your  title."  See  also  Doe 
dem.  Humphrey  v.  Martin,  Car.  &  Marsh.  32.  These  cases  would 
have  warranted  us  in  saying  that  the  lessor  of  the  plaintiff  had  estab- 
lished her  case,  if  she  had  shewn  nothing  but  her  own  possession  for 
thirteen  years.  The  ground  however  of  so  saying  would  not  be  that 
possession  alone  is  sufficient  in  ejectment  (as  it  is  in  trespass)  to  main-  ^^^^ 
tain  the  action ;  but  that  such  possession  is  prima  facie  evidence  of  ^^^•'^ 
title,  and,  no  other  interest  appearing  in  proof,  evidence  of  seisin  in  fe^. 
Here,  however,  the  lessor  of  the  plaintiff'  did  more,  for  she  proved  the 
possession  of  her  husband  before  her  for  eighteen  years,  which  was 
prima  facie  evidence  of  his  seisin  in  fee ;  and,  as  he  died  in  possession 
and  left  children,  it  was  prima  facie  evidence  of  the  title  of  his  heir. 


28  ORIGINAL   TITLES  (Part  1 

against  which  the  lessor  of  the  plaintiff's  possession  for  thirteen  years 
could  not  prevail ;  and,  therefore,  she  has  by  her  own  shewing  proved 
the  title  to  be  in  another,  of  which  the  defendant  is  entitled  to  take  ad- 
vantage.^^ On  this  ground  we  tliink  that  the  rule  for  a  nonsuit  must 
be  made  absolute. 

Rule  absolute  for  a  nonsuit. 


AGENCY  CO.  V.  SHORT. 

(Privy  Council,  1SS8.     13  App.  Cas.  793.) 

Appeal  from  a  judgment  of  the  Supreme  Court  (Oct.  27,  1886)  re- 
fusing a  rule  nisi  for  a  new  trial  in  an  action  of  ejectment  to  recover 
fifty  acres  of  land  situate  in  Botany  Bay,  in  the  Colony  of  New  South 
Wales. 

The  facts  of  the  case  are  stated  in  the  judgment  of  their  Lordships. 
The  proceedings  in  the  Court  below  are  reported  in  N.  S.  Wales  Rep. 
vol.  8  (N.  S.)  p.  365. 

'  Chief  Justice  Martin  told  the  iurv  at  the  trial  that  when  any  person 
went  into  possession  of  another  person's  land,  and  exercised  dominion 
over  it  with  the  intention  of  claiming  it,  and  the  Statute  of  Limitations 
thereupon  began  to  run  as  against  the  owner  of  the  land,  such  running 
was  never  stopped,  notwithstanding  that  the  intruder  entirely  aban- 
doned the  land  long  before  thp  expiration  of  twenty  years  from  Jjis 
first  entry,  and  no  other  person  took  possession  of  such  land,  and  that 
the  right  of  the  true  owner  of  the  land  would  not  again  arise  without 
an  entry  by  such  true  owner  with  the  intention  of  repossessing  himself 
of  such  land ;  that  at  the  expiration  of  twenty  years  after  such  taking 
possession  of  the  land  as  against  the  true  owner  his  right  of  action  was 
defeated,  notwithstanding  that  there  may  not  have  been  twenty  years' 
possession  as  against  him ;  that  if  Meredith,  through  whose  possession 
the  defendant  claimed,  abandoned  the  land  in  the  year  1853,  and  after- 
wards, until  the  detendant  came  there,  no  person  was  in  possession  o f 
the  land,  still  the  statute  continued  to  run  as  against  the  plaintiff:  and 
that  the  statute  barred  the  plaintiff's  ri^ht  of  action  hergin. 

The  Supreme  Court  (Martin,  C.  J.,  Faucett  and  Windeyer,  JJ.)  af- 
firmed this  ruling. 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  Macnaghten.  On  the  3rd  of  December,  1885,  the  appellants, 
as  plaintiffs,  brought  an  action  against  the  respondent  as  defendant,  to 
recover  fifty  acres  of  land  situated  in  the  district  of  Botany  Bay,  in  the 
county  of  Cumberland,  in  the  colony  of  New  South  Wales. 

The  defencfi^was  the  Statute  of  Limitations  (3  &  4  Will.  IV,  c.  27), 
which  was  adopted  in  the  Colony  by  the  Act  No.  3  of  1837. 

The  action  camie  on  for  trial  in  September,  1886,  before  the  late 
Chief  Justice  Martin  and  a  jury. 

11  See  Christy  v.  Scott,  14  How.  282,  292,  14  L.  Ed.  422  (1852),  contra. 


Ch.l) 


POSSESSORY  TITLES 


29 


For  the  present  purpose  the  facts  of  the  case  may  be  stated  very 
shortly.  The  land  in  dispute  was,  until  recently,  waste  open  bush. 
The  plaintiffs  at  the  trial  proved  a  complete  documentary  title  deduced 
from  a  Crown  grant  in  1810.  But  they  failed  to  prove  to  the  satisfac- 
tion of  the  learned  judge  at  the  trial  that  they  or  any  person  through 
whom  they  claimed  had  been  in  actual  occupation  of  the  land  at  any 
time  during  the  period  of  twenty  years  immediately  preceding  the 
commencement  of  the  action.  On  the  other  hand  the  defendant,  who 
claimed  to  have  purchased  the  land  within  the  last  few  years,  did  not 
prove  to  the  satisfaction  of  the  learned  judge  that  he  and  the  person 
or  persons  through  whom  he  claimed  had  been  in  continuous  possession 
during  the  statutory  period.  '        ~ 

The  Chief  Justice  told  the  jury  that  when  any  person  went  into  pos- 
session of  another  person's  land,  and  exercised  dominion  over  it,  with 
the  intention  of  claiming  it,  and  the  Statute  of  Limitations  thereupon 
began  to  run  as  against  the  owner  of  the  land,  such  running  was  never 
stopped,  notwithstanding  that  the  intruder  abandoned  the  land  long 
before  the  expiration  of  twenty  years  from  his  first  entry,  and  no  other 
person  took  possession  of  such  land,  and  the  right  of  the  true  owner  to_ 
the  land  would  not  again  arise  without  an  entry  by  such  true  owner 
with  the  intention  of  repossessing  himself  of  such  land_^  The  Chief 
Justice  also  told  the  jury  that  at  the  expiration  of  the  twenty  years 
after  such  taking  possession  of  the  land,  as  against  the  true  owner,  his 
right  of  action  was  defeated,  notwithstanding  there  may  not  have  been 
twenty  years'  possession  as  against  him. 

A  verdict  was  found  for  the  defendant. 

On  the  27th  of  October,  1886,  the  plaintiffs  applied  for  a  rule  nisi 
for  a  new  trial  on  the  ground  of  misdirection.  The  application  was 
heard  before  the  late  Chief  Justice,  Faucett,  J.,  and  Windeyer,  J.,  who 
refused  the  rule.  The  Chief  Justice  is  reported  to  have  said :  "There 
is  no  doubt  that  there  was  evidence  sufficient  to  justify  the  verdict  of 
the  jury  as  to  the  occupation  of  the  land  more  than  forty  years  ago, 
which  caused  the  statute  to  run  against  the  legal  owner.  That  being 
so,  there  was  no  evidence  whatever  that  the  legal  owner  during  that 
time  ever  retook  possession,  or  even  walked  over  the  land.  The  stat- 
ute  having  been  set  running  there  was  nothing  to  stop  it." 

To  this  report  Faucett,  J.,  has  been  good  enough  to  append  the  fol- 
lowing memorandum  for  the  information  of  their  Lordships : 

"This  is  substantially  a  correct  note  of  the  reasons  given  by  the  late 
Piief  Justice  for  refusing  the  rule  in  this  case.  His  judgment  was 
given  in  very  few  words. 

"I  may  add  that  it  has  been  before  held  by  this  Court  that  when  the 
rightful  owner  of  land  has  been  dispossessed,  and  the  statute  has  once 
begun  to  run  against  him,  the  statute  does  not  cease  to  run ;  in  other 
words,  the  operation  of  the  statute  is  not  suspended  until  the  rightful 
owner  has  exercised  some  act  of  ownership  on  the  land ;  and  that  if  the 
rightful  owner  allows  twenty  years  to  elapse,  frorh  the  time  when  the 


La^cZ^ 


^.^^-ijL^^     t^A-<rvv*-- 


30  ORIGINAL  TITLES  (Part  1 

statute  so  first  began  to  run,  without  exercising  any  such  act  of  owner- 
ship, he  cannot  recover  in  ejectment  against  any  person  who  may  hap- 
pen to  be  in  possession  at  the  end  of  the  twenty  years,  although  there 
rnay  have  been  an  interval  in  the  twenty  years  during  which  no  one 
was  in  possession. 

"To  stop  or  suspend  the  operation  of  the  statute  there  must  be  some 
new  act  of  ownership  on  the  part  of  the  rightful  owner.  There  must 
be,  as  it  were,  a  new  departure." 

The  doctrine  appears  to  have  had  its  origin  in  the  case  of  Laing  v. 
Bain,  which  was  before  the  Supreme  Court  on  a  motion  for  a  new  trial 
in  March,  1876.  Their  Lordships  were  referred  to  a  note  of  the  case 
in  Oliver's  Real  Property  Statutes,  p.  79.  Martin,  C.  J.,  is  there  re- 
ported to  have  said  that  "it  was  clear  law  that  if  the  statute  once  com- 
menced to  run  it  would  not  stop  except  by  the  owner  going  into  pos- 
session and  so  getting,  as  it  were,  a  new  departure." 

Their  Lordships  are  unable  to  concur  in  this  view.  They  are  of 
opinion  that  if  a  person  enters  upon  the  land  of  another  and  holds  pos- 
session for  a  time,  and  then,  without  having  acquired  title  under  the 
statute,  abandons  possession,  tlie  riglitful  owner,  on  the  abandonment, 
is  in  Jhe  same  position  in  all  respects  as  he  was  before  the  intrusion 
took  place.  There  is  no  one  against  whom  he  can  bring  an  action.  He 
cannot  make  an  entry  upon  himself.  There  is  no  positive  enactment, 
nor  is  there  any  principle  of  law,  which  requires  him  to  do  any  act,  to 
issue  any  notice,  or  to  perform  any  ceremony  in  order  to  rehabilitate 
himself.  No,  new  departure  is  necessary^.  The  pwDSsession  of  the  in- 
truder, ineffectual  for  the  purpose  of  transferring  title,  ceases-  upon 
its  abandonment  to  be  effectual  for  any  purpose.  It  does  not  leave  be- 
hind it  any  cloud  on  the  title  of  the  rightful  owner,  or  any  secret  pro- 
cess at  work  for  the  possible  benefit  in  time  to  come  of  some  casual  in- 
terloper or  lucky  vagrant. 

There  is  not,  in  their  Lordships'  opinion,  any  analogy  between  the 
case  supposed  and  the  case  of  successive  disabilities  mentioned  in  the 
statute.  There  the  statute  "continues  to  run"  because  there  is  a  per- 
son in  possession  in  whose  favour  it  is  running. 

There  is  no  direct  authority  on  the  point  in  this  country.  But  such 
authority  as  there  is  seems  to  be  opposed  to  the  doctrine  laid  down  by 
the  Supreme  Court.  It  is  sufficient  to  refer  to  McDonnell  v.  McKinty, 
10  Ir.  L,  R.  514,  Lord  St.  Leonards'  Real  Property  Statutes,  p.  31,  and 
Smith  V.  Lloyd,  9  Exch.  (Welsby,  H.  &  Gor.)  562.  In  the  latter  case, 
which  was  decided  in  1854,  Parke,  B.,  giving  the  judgment  of  the 
Court,  says:  "We  are  clearly  of  opinion  that  the  statute  applies,  not 
to  want  of  actual  possession  by  the  plaintiff,  but  to  cases  where  he  has 
been  out  of,  and  another  in,  possession  for  the  prescribed  time.  There 
must  be  both  absence  of  possession  by  the  person  who  has  the  right, 
and  actual  possession  by  another,  whether  adverse  or  not,  to  be  pro- 
tected, to  bring  the  case  within  the  statute.    We  entirely  concur  in  the 


Ch.  1)  POSSESSORY   TITLES  31 

judgment  of  Blackburne,  C.  J.,  in  McDonnell  v.  McKinty,  and  the 
principle  on  which  it  is  founded." 

Their  Lordships  have  only  to  add  that,  in  their  opinion,  there  is  no 
difference  in  principle  as  regards  the  application  of  the  statute  between 
the  case  of  mines  and  the  case  of  other  land  where  tlie  fact  of  posses- 
sion is  more  open  and  notorious.  It  is  obvious  that,  in  the  case  of 
mines,  the  doctrine  contended  for  might  lead  to  startling  results  and 
produce  great  injustice. 

In  the  result,  therefore,  their  Lordships  have  come  to  the  conclusion 
that  the  direction  given  to  the  jury  by  the  learned  Chief  Justice  was 
not  law,  and  they  think  that_ there  was  substantial  miscarriage  in  the 
trial.  " 


They  will,  therefore,  humbly  advise  Her  Majesty  that  the  judgment 
of  the  Supreme  Court  refusing  the  rule  nisi  ought  to  be  reversed,  that 
a  new  trial  ought  to  be  directed,  and  that  the  costs  in  the  former  trial 
and  of  the  application  for  the  rule  ought  to  be  costs  in  the  action. 

The  respondent  will  pay  the  costs  of  the  appeal. 


-^jP*^^ 


SHANNON  V.  KINNY  et  al. 
(Court  of  Appeals  of  Kentucky,  1S17.     1  A.  K.  Marsh.  3,  10  Am.  Dec.  705.) 

Boyle,  C.  J.^^  This  was  an  action  of  eiectment.  On  the  trial,  after 
the  plaintiff  had  exhibited  the  patent  of  the  commonw^nlth  to  William 
Shannon  for  the  land  in  controversy,  and  had  produced  evidence  con- 
ducing to  prove  that  William  Shannon,  the  patentee,  was  the  son  of 
William  Shannon,  senior;  that  the  plaintiff',  John  Shannon,  was  the 
eldest  brother  of  the  patentee ;  that  the  patentee  was  killed  by  the  In- 
dians in  1782;  that  William  Shannon,  his  father,  died  in  a  year  or  two 
thereafter,  leaving  John  Shannon,  the  plaintiff,  his  eldest  son ;  and  after 
it  had  also  appeared  in  evidence,  that  Hugh  Shannon,  a  younger  broth- 
er, had,  in  the  year  1784,  settled  upon  the  land  in  controversy,  claim- 
ing it  as  his  own,  and  had  used  and  sold  part  thereof,  that  for  twenty 
years  or  upwards,  John  Shannon  had  been  in  habits  of  intimacy  with 
his  brother  Hugh  Shannon,  and  was  fully  apprised  of  his  claiming_and 
sellino'  said  land  ;  the  attorney  for  the  defendant  asked  a  witness  wheth- 
er said  Hugh  Shannon  had  not  latterly  become  insolvent,  avowing  his 
object  to  be  to  prove  by  that  and  other  circumstances,  a  collusive  de- 
struction of  a  writing  evidencing  a  transfer  of  said  land,  betwixt  the 
plaintiff  and  Hugh  Shannon;  to  the  asking  and  answering  of  which 
question,  the  plaintiff"  objected;  but  the  court  overruled  the  objection 
and  instructed  the  witness  to  answer  the  question,  to  which  the  plain- 
tiff excepted. 

Whether  the  court  below  erred  in  their  decision  of  this  point,  is  the 
first  question  which  is  necessary  to  be  determined.     *     *     * 

12  The  part  of  the  opinion  relating  to  the  first  question  is  omitted. 


32 


ORIGINAL  TITLES 


(Part  1 


The  only  other  question. presented  by  the  case  is,  whether  the  stat- 
ute of  Hmitation  was  a  bar  to  tlie  plaintiff's  recovery.  It  appears  that 
there  was  a  continual  adverse  possession  for  more  than  twenty  years, 
but  that  Hugh  Shannon,  who  first  took  the  possession  of  the  land  in 
controversy,  before  he^  had  remained  in  possession  twenty  years,  sur- 
rendered  the  possession  to  the  defendants  or  those  under  whom  they 
held,  in  pursuance  of  a  decree  entered  upon  an  award  giving  them  the 
land  m  virtue  ot  an  adverse  claim,  and  that  they  had  not  had  the  land 
in  possession  twenty  years  prior  to  the  commencement  of  this  suit. 

This  circumstance,  it  is  urged  on  the  part  of  the  plaintiff,  prevents 
the  statute  from  operating  as  a  bar  to  his  recovery.  But  we  cannot 
perceive  any  principle  upon  which  it  can  have  such  an  effect.  Accord- 
ing to  the  literal  import  of  the  statute,  the  plaintiff  could  only  enter 
upon  the  land  within  twenty  3^ears  after  his  right  of  entry  accrued,  and, 
consequently,  an  adverse  possession  for  that  length  of  time,  will  toll 
Nor  can  it,  in  the  reason  and  nature  of  the  thing,  produce 
ifference,  whether  the  possession  be  held  uniformly  under  one 
title,  or  at  different  times  under  different  titles,  provided  the  claim  of 
itle  be  always  adverse  to  that  of  the  plaintiff,  nor  whether  the  posses- 
sion be  held  by  the  same  or  a  succession  of  individuals,  provided  the 
possession  be  a  continued  and  uninterrupted  one. 

Judgment  must  be  affirmed  with  costs. ^' 


N^ 


DOE  ex  dem.  HARLAN  v.  BROWN. 
(Supreme  Court  of  Indiana,  1853.     4  Ind.  143.) 

Error  to  the  Fayette  Circuit  Court. 

RoACHE,  J.  Ejectment^by  the  heirs  of  Joshua  Harlan  for  a  lot  in 
the  town  of  Connersville.  Verdict  and  judgment  for  the  defendant. 
Motion  for  a  new  trial  overruled.  The  evidence  is  all  set  out  in  a  bill 
of  exceptions. 

The  plaintiffs  were  admitted  at  the  trial  to  be  the  heirs  of  Toshua 
Harlan.  They  then  gave  in  evidence  a  deed  of  conveyan.ce  from  John 
Conner  to  their  ancestor,  dated  the  30th  day  of  November,  1818.  It 
was  further  admitted  by  the  defendant  that  Joshua  .Harlan,  in  his  life- 
time, laid  out  a  portion  of  the  land  embraced  in  the  deed,  into  town  lots, 
as  a  part  of  the  town  of  Connersville,  and  that  the  lot  No.  87,  in  con- 
troversy in  the  suit,  was  one  of  those  lots. 

The  defen(je  set  up  by  Brown,  who  was  admittedly  defendant  under 
the  rule,  was  an  adverse  possession  by  himself  and  one  Solomon  Clay- 


is  Accord:  Fanning  v.  Wilcox,  3  Day  (Conn.)  258  (1808);  Smith  v.  Chapin, 
31  Conn.  530  (1863);  Wisliart  v.  McKniglit,  178  Mass.  356,  59  N.  E.  1028,  86 
Am.  St.  Rep.  486  (1901),  explaining  Sawyer  v.  Kendall,  10  Cush.  (Mass.)  241 
(1852),  though  the  point  perhaps  was  not  necessarily  involved.  See,  also, 
Scales  V.  Cockrill,  3  Head  (Tenn.)  432  (1859);  Davis  v.  McArthur,  78  N.  C. 
-357  (1878). 


Ch.  1)  POSSESSORY   TITLES  33 

pool,  of  twenty  years.  The  evidence  introduced  by  him  showed  that 
Joshua  Harlan  died  about  the  year  1827;  that  some  time  between  1826 
and  1828,  Solomon  Clay  pool,  claiming  to  be  the  owner  of  the  lot, 
leased  it  for  a  term  of  years  to  be  fenced  and  cleared ;  that  it  was  ac- 
cordingly fenced  and  cleared  by  the  lessee,  in  one  of  those  years,  most 
probably  in  1827;  that  at  tlie  expiration  of  that  lease,  he  rented  it  to 
a  tenant  to  make  brick  upon  it.  Shortly  afterward,  the  fence  was 
removed,  it  does  not  appear  by  whom,  and  the  lot  remained  vacant 
and  unenclosed  up  to  1843,  a  period  of  not  less  than  ten  years ;  but 
during  all  that  period  Claypool  continuously  claimed,  and  was  gen- 
erally understood,  in  the  neighborhood,  to  be  the  owner ;  that  from 
1830  to  1845,  both  inclusive,  the  taxes  on  the  lot  were  annually  charg- 
ed to  and  paid  by  Claypool,  in  which  latter  year  he  died.  The  tax  du- 
plicates, which  were  in  evidence,  showed  that  in  1827.  the  lot  was  not 
assessed  to  any  one ;  that  in  1828  and  1829,  it  w\is  placed  on  the  dupli- 
cate, but  was  included  in  the  list  under  the  heading  of  "unknown  own- 
ers^' ;  and  that  in  neither  of  those  years  were  the  taxes  upon  it  paid  by 
either  Harlan  or  Claypool. 

The  defendant  also  proved  by  one  Bundrant,  that  he  had  known 
lot  No.  87  since  1837;  that  it  was  then  unenclosed,  and  was  called  the 
property  of  Solomon  Claypool ;  that  in  1843,. the  defendant,  (Brown,) 
went  into  possession  of  the  lot,  fenced  it  and  built  a  house,  and  has  oc- 
cupied it  ever  since. 

This  was  all  the  evidence. 

The  plaintiffs  asked  for  several  instructions  to  the  jury,  all  of  which 
the  Court  refused  to  give.  It  is  unnecessary,  however,  to  examine 
whether  these  instructions  should  have  been  given,  as  they  were  all 
substantially  embraced  in  the  charge  which  the  Court  gave.  The  jury 
were  fully  and  correctly  instructed  as  to  the  law  of  the  case.  It  only 
remains  to  examine  whether  their  verdict  was  sustained  by  the  evi- 
dence. 

In  their  instructions,  the  Court  below  charged  the  jury  that  a  con- 
tinuous, uninterrupted,  peaceable  possession  of  twenty  years,  under  a 
claim  of  title,  was  necessary  to  make  out  the  defence  relied  on  by  the 
defendant,  and  that  if  it  was  necessary  to  add  the  possession  of  Brown 
to  that  of  Claypool.  to  make  up  the  twenty  years,  he.  the  defendant, 
rnust  show  that  he  was  in  possession  under  Claypool.  This  is  the  law. 
To  defeat  the  recovery  of  a  plaintiff  who  produces  a  regular  legal  ti- 
tle, by  a  title  founded  on  possession,  strict  proof  must  be  made  not  only 
that  the  possession  was,  from  its  inception,  under  a  public  claim  of  ti- 
tle adverse  to  that  of  the  real  owner,  but  that  both  such  claim  and  pos- 
session  have  been  continuous  and  uninterrupted.  And  this  continuity 
must  be  kept  unbroken  through  the  full  period  of  twenty  years.  If  the 
chain  is  broken  at  any  point  within  that  period,  no  title  is  acquired. 
In  the  case  where  several  tenants  have,  during  the  time,  successively 
occupied  Jhe..pranises,  J:Q_m.aks_their  possession  available  it  must  be  ^«^ 

Aiq.Prop. — 3 


34  ORIGINAL  TITLES  (Part  1 

shown  that  each  one  claimed  to  hold,  and  was  in  possession,  under  his 
predecessor.  Brandt  v.  Ogden,  1  Johns.  (N.  Y.)  156;  Doe  v.  Campbell, 
10  Johns.  (N.  Y.)  475;  Hawk  v.  Senseman,  6  Serg.  &  R.  (Pa.)  21; 
Coburn  v.  Hollis,  3  Mete.  (Mass.)  125. 

In  the  case  under  consideration,  Brown  could  not  make  nut  the 
twenty  years  without  connecting  his  possession  with  that  of  CInvpool, 
by  showing  that  he  was  in  under  him.  If  there  was  any  evidence  on 
this  point,  we  should  not  be  disposed  to  disturb  the  verdict  of  the  jury. 
But  if  the  bill  of  exceptions  contains  all  the  evidence,  as  it  purports  to 
do,  tliere  is  no  proof  tending  to  connect  the  possession  of  Brown  with 
that  of  Claypool.  Neither  one  of  them  was  in  possession  for  a  period 
of  twenty  years.  Claypool  was  occupying  and  claiming  title  for  some 
sixteen  years,  from  about  1827  to  1843.  Then,  it  is  in  proof.  Brown 
went  into  possession;  but,  how,  or  under  what  circumstances,  is  not 
shown.  From  aught  that  appears,  he  may  have  gone  in  as  a  mere 
trespasser,  against  the  consent  of  Claypool.  Having  totally  failed  to 
establish  that  his  possession  of  the  premises  was  a  continuation  of  that 
of  Claypool,  by  showing  that  he  was  in  under  the  latter,  he  has  left  a 
chasm  in  his  title  which  is  fatal  to  the  defence  he  relies  on. 

The  Court  should  have  granted  the  motion  of  the  plaintiffs  for  a  new 
trial. 

Per  Curiam.  The  judgment  is  reversed  with  costs.  Cause  remand- 
ed, etc.  ~~  ~ 

SHERIN  et  al.  v.  BRACKETT. 
(Supreme  Court  of  Minnesota,  1SS6.     3G  Rlinn.  152,  30  N.  W.  551.) 

The  plaintiffs  brought  this  action  in  the  district  court  for  Hennepin 
county,  to  recover  the  possession  of  a  strip  of  land  in  Minneapolis. 
Upon  the  trial  before  Young,  J.,  and  a  jury,  the  plaintiffs  having  rested 
their  case,  the  action  was  dismissed,  on  defendant's  motion,  for  plain- 
tiff's failure  to  make  out  a  case.  Plaintiffs  appeal  from  an  order  re- 
fusing a  new  trial. 

Berry,  J.  This  is  an  action  injhe  nature  of  ejectrnent,  in  which  the 
plaintiffs,  seeking  to  recover  possession  of  a  strip  of  land,  alleged  that 
on  October  1,  1885,  and  long  before,  they  were  and  now  are  owners 
thereof;  and  further  that  they  and  their  ancestors,  from  whom  they 
derive  title,  have  been  in  the  actual,  peaceable,  open,  notorious,  adverse, 
and  continuous  possession  thereof  for  more  than  25  years  prior  and 
up  to  October  8,  1885,  that  on  that  day,  while  they  were  in  such  actual 
possession,  defendant  unlawfully  entered  upon  said  strip  of  land  and 
wrongfully  ejected  them  therefrom,  and  ever  since  wrongfully  detains 
possession  thereof. 

Doubtless  the  intent  of  the  pleader  was  to  set  up  title  in  fee  based 
upon  what  is  called  adverse  possession.  But  as  the  greater  includes 
the  less,  th^  complaint  sufificientlj'  pleaded  actual  possession  at  the  time 
of  the  defendant's  alleged  entry,  so  that  if  upon  the  trial  the  plaintiffs 


Ch.  1)  POSSESSOEY  TITLES  35 

failed  to  make  out  adverse  possession,  such  as  would  give  them  title 
as  against  the  holder  of  the  paper  title,  still,  if  they  proved  actual  pos- 
session, they  might  properly  insist  that  they  were  within  the  allegations 
of  their  complaint,  and  had  made  out  a  case  as  against  a  mere  tres- 
passer. For  as  against  one  showing  no  title  in  himself,  possession  is 
title.  Wild^FVTCity  of  St.  Paul,  12  Minn.  192  (Gil.  116) ;  Rau  v.  Minne- 
sota Vallev  R.  Co.,  13  Minn.  442  (Gil.  407) ;  Sedg.  &  W.  Tr.  Title  Land, 
§§  717,  718. 

The  evidence  upon  the  trial  below  in  the  case  at  bar  showed  that 
{plaintiffs  were  in  possession  of  the  strip  of  land  in  controversy  at  the 
time  of  defendant's  entry  upon  it,  and  defendant  gave  no  evidence  of 
any  right  or  title  in  himself.  In  this  state  of  the  evidence  the  plaintiffs 
were  entitled  to  judgment,  and  hence  the  trial  court  erred  in  dismissing 
the  action  at  the  close  of  the  plaintiffs'  testimony.  As  this  point  is  in- 
sisted upon  by  plaintiffs  it  cannot  be  disregarded,  and  so  there  must  be 
a  new  trial. 

This  disposes  of  the  present  appeal,  but  (as  we  surmise)  not  of  the 
real  merits  of  the  controversy,  and  therefore,  with  reference  to  a  new 
trial,  we  deem  it  expedient  to  determine  certain  other  questions  raised 
upon  the  argument. 

And,  _first^  though  there  are  a  few  cases  which  hold  that  the  statu- 
tory period  of  adverse  possession,  which  will  bar  an  action  for  the  re- 
covery of  land,  may  be  made  up  by  tacking  together  the  periods  of  the 
adverse  possession  of  several  successive  holders  between  whom  there 
is  no  privity,  (see  Scales  v.  Cockrill,  3  Head  [Tenn.]  432;  Smith  v. 
Chapin,  31  Conn.  530;  Davis  v.  McArthur,  78  N.  C.  357,)  the  rule  laid 
down  by  the  great  majority  of  courts  and  by  the  text-v/riters,  and  sup- 
ported by  the  weight  of  authority,  and  which  must  be  regarded  as  the 
true  rule,  is  that  privity  between  successive  adverse  holders  is  indis-  -jat- 

pensable.  And  this  upon  the  principle  that  unless  the  successive  ad- 
verse possessions  are  connected  by  privity,  the  disseizin  of  the  real 
owner  resulting  from  the  adverse  possession  is  interrupted,  and  dur- 
mg  the  interruption,  though  but  for  a  moment,  the  title  of  the  real 
owner  draws  to  it  the  seizin  or  possession.    Melvin  v.  Proprietors,  etc., 

5  Mete.  Olass.)  15,  38  Am.  Dec.  384;  Ha'ynes  v.  Boardman,  119  Mass. 
414;  McEntire  v.  Brown,  28  Ind.  347;  Jackson  v.  Leonard,  9  Cow. 
(N.  Y.)  653 ;  Wood,  Lim.  sec.  271 ;  San  Francisco  v.  Fulde,  Z7  Cal.  349, 
99  Am.  Dec.  278;  Crispen  v.  liannavan,  50  Mo.  536;  Shuffleton  v.  Nel- 
son, 2  Sawy.  540,  Fed.  Cas.  No.  12,822;  Ang.  Lim.  §§  413,  414;  Sedg. 

6  W.  Tr.  Title  Land,  §§  740,  745-747;  Riggs  v.  Fuller,  54  Ala.  141.^* 

14  Lessee  of  Potts  v.  Gilbert,  3  Wash.  C.  C.  475,  Fed.  Cas.  No.  11,347  (1819); 
Ely  V.  Brown,  183  111.  575,  5G  N.  E.  181  (1900);  Sheldon  v.  Michiiian  Cent. 
R.  Co.,  161  Mich.  503,  126  N.  W.  1056  (1910) ;  Moore  v.  Collishaw,  10  Pa.  224 
(1849) ;    Illinois  Steel  Co.  v.  Paczocha,  139  Wis.  23,  119  N.  W.  550  (1909),  ace. 

Lnder  the  statute  in  North  Daliota  successive  adverse  possessions  could 
noclje'  taclced  even  thoufi;h  there  was  privitv.  Streeter  Co.  v,  Fredrickson, 
II  N.  D.  300,  91  N.  W.  G92"119a2);"~Tii"Souif!r' Carolina  tacking  is  allowed  be- 
tween heir  and  ancestor,  but  not  between  grantee  and  grantor,  Epperson  v. 
Stansill,  64  S,  C.  485,  42  S.  E,  426  (1902). 


36  ORIGINAL  TITLES  (Part  1 

Second.  The  privity  spoken  of  exists  between  two  successive  holders 
when  the  later  takes  under  the  earlier,  as  by  descent,  (for  instance,  a 
widow  under  her  husband,  or  a  child  under  its  parent,)  or  by  will  or 
grant,  or  by  a  voluntary  ^^  transfer  of  possession.  Leonard  v.  Leon- 
ard, '7  Allen  (Mass.)  277;  Hamilton  v.  Wright,  30  Iowa,  480;  Jackson 
V.  Moore,  13  Johns.  (N.  Y.)  513,  7  Am.  Dec.  398;  McEntire  v.  Brown, 
supra;  Weber  v.  Anderson,  73  111.  439;  Wood,  Lim.  ,§  271  ;  Sedg.  & 
W.  Tr.  Title  Land,  §§  747,  748. 

Third.  While  to  operate  as  a  bar,  adverse  possession  must  be  con- 
tinuous, continuity  will  not  be  interrupted  by  the  possession,  during 
any  part  of  its  period,  of  one  who  occupies  the  premises  as  a  tenant  of 
the  alleged  adverse  possessor.  In  such  cases  the  tenant's  posgession  is 
jdiat  of  his  landlorxL-  San  Francisco  v.  Fulde,  supra;  Rayner  v.  Lee, 
20  Mich.  384 ;  Sedg.  &  W.  Tr.  Title  Land,  §  747. 

Fourth.  Possession,  to  be  adverse,  so  as  to  bar  an  owner's  right  of 
action,  must  be  actual,  open^  continuous,  hostile,  exclusive,  and  accom- 
panied by  an  intention  to  claim  adversely,.  Sedg.  &  W.  Tr.  Title  Land^ 
sec.  731  et  seq. 

This  is  all  which  we  deem  it  necessary  to  say  in  this  case;  for,  as 
there  is  to  be  a  new  trial,  we  forbear  to  comment  upon  the  evidence. 

Order  reversed,  and  new  trial  awarded. 


Tr 


\ 

McNEELY  et  ux.  v.  LANGAN. 

(Supreme  Court  of  Ohio,  1871.     22  Ohio  St.  32.) 

Error  to  the  Court  of  Common  Pleas  of  Hamilton  county,  reserved 
in  the  District  Court. 

The  original  action  was  brqug]itJ>xth6J?!lailltiffs_^.  error  to  recover 
a  strip  of  ground  three  feet  wide,  fronting  on  Longworth  street,  in  the 
city  of  Cincinnati. 

The  defense  relied  on  was  the  statute  of  limitations.  The  case  was 
submitted  to  the  court  upon  the  following  agreed  statement  of  facts : 

Jane  McNeely  et  al.  v.  Thomas  Langan.     No.  32,026.     Hamilton 

Common  Pleas. 

It  is  hereby  agreed  between  the  parties  that  Stephen  Burrows,  on  the 
1st  day  of  January,  1842,  leased  perpetually  to  R.  G.  Masterson  the 
following  described  premises,  to  which  the  said  Burrows  had  a  good 
title  in  fee  simple,  viz. :  beginning  at  a  point  in  the  south  line  of  Long- 
worth  street  as  continued,  and  the  east  line  of  a  lot  of  ground  lately 
belonging  to  tlie  estate  of  Samuel  Still,  deceased,  extending  thence 
south  with  said  east  line  eighty  feet,  more  or  less,  to  the  north  line  of  a 

15  See  Memphis  &  L.  R.  Co.  v.  Organ,  67  Ark.  84,  55  S.  W.  952  (1S99); 
Kendric-k  v.  Latham,  25  Fla.  819,  6  South.  871  (1889) ;  Mortenson  v.  Murphy^ 
153  Wis.  3S9,  141  N.  W.  273  (1913). 


Ch.  1)  POSSESSORY   TITLES  3T 

ten  foot  alley;  thence  east  along  the  north  line  of  said  alley  twenty-  L.' 
three  feet;  thence  north  parallel  with  said  Still's  east  line  aforesaid  ■  . 
eighty  feet,  more  or  less,  to  the  south  line  of  Longworth  street  as  afore- 
said ;  thence  west  along  the  south  line  of  Longworth  street  twenty- 
three  feet  to  the  beginning.  That  R.  G.  Masterson  conveyed  said  lot 
and  leasehold  to"  Joseph  More,  May  20,  1850;  said  More  to  E.  P. 
Cranch,  April  10,  1854;  and  said  Cranch  to  the  defendant,  Thomas 
Langan,  August  29,  1860.  It  is  hereby  further  agreed  that  said  Mas- 
terson, on  or  about  May,  1842,  built  a  frame  cottage  on  the  west  line 
of  said  lot  and  on  the  land  described  in  the  petition.     It  is  further  ~ 

agreed  that  the  plaintiffs  are  the  owners  of  said  land  described  in  their 
said  petition,  if  the  same  does  not  belong  to  the  defendant  by  occu- 
pancy. It  is  further  agreed  between  the  parties  that  the  land  described 
in  their  petition  was  not  conveyed  by  deed  to  Masterson,  nor  by  Mas- 
terson to  More,  nor  from  More  to  Cranch,  nor  from  Cranch  to  the 
defendant.  Langan.  That  the  said  Masterson,  at  the  time  of  taking 
possession  under  his  lease  from  Burrows,  entered  into  the  possession 
of  the  premises  described  in  the  petition,  fenced  it  in  with  the  other 
property,  built  his  house  partly  thereon,  so  as  to  occupy  these  three 
feet  as  above  stated ;  and  the  said  Masterson,  More,  Cranch,  and  the 
defendant,  Langan,  have,  by  transfer  of  possession  made  at  the  time 
of  the  several  conveyances  above  mentioned,  remained  in  continuous 
possession  and  actual  occupancy  of  said  premises  and  cottage,  including 
said  three  feet,  from  May,  1842,  to  the  present  time.  That  neither 
the  plaintiffs,  nor  those  under  whom  they  claim,  nor_t_he_defaTidant,  nor 
those  under  whom  he  claims,  were  aware  of  any  question  as  to  the 
title  to  this  strip  of  three  feet,  nor  as  to  any  error  made  in  the  original 
location  of  said  cottage  and  fencing,  until  October,  1860,  when,  by  a 
survey  then  made,  it  was  discovered  by  the  plaintiff's  that  these  three 
TeeiTwere  noTmcTiKled  in  the  perpetual  lease  made  to  Masterson ;  and 
thereupon  the  plaintiffs,  in  the  year  1865,  made,  for  the  first  time,  a 
demand  upon  the  defendant  for  the  possession  thereof,  which  was  re- 
fused tlien  as  it  is  now,  and  hence  this  suit. 

Wm.  Disney,  Attorney  for  Defendant. 
S.  Clark,  Plaintiffs'  Attorney. 

The  court  found  in  favor  of  the  defendant,  and  rendered  judgment 
accordingly. 

The  plaintiffs  filed  a  petition  in  error  in  the  District  Court,  asking 
a  reversal  of  the  judgment  on  the  general  grounds  that  the  court  erred 
in  allowing  the  defendant  the  benefit  of  the  statute  of  limitation. 

The  case  was  reserved  by  the  District  Court  for  decision  by  this 
court. 

White,  J.  By  the  agreed  statement,  the  court  below  was  warranted 
in  finding  the  possession  to  have  been  sufficiently  open,  notorious,  and 
adverse  to  bring  it  within  the  operation  of  the  statute  of  limitations. 
The  quesji^n  is,  whether  it  was,  in  a  legal  sensCj  continuous. 

For  the  plaintiff  in  error,  it  is  contended  that  the  continuity  of  pos- 


38  ORIGINAL  TITLES  (Part  1 

session  was  broken  by  each  successive  transfer  of  the  premises  in  con- 
troversy ;  and,  consequently,  that  as  neither  the  defendant  nor  any  one 
occupier  under  whom  he  claims  held  possession  for  the  period  of  lim- 
itation, the  statute  is  not  available  as  a  bar  to  the  action. 

There  are  authorities  supporting  this  view,  but  we  think  the  better 
reason,  as  well  as  the  weight  of  authority,  is  against  the  position.  Fan- 
ning V.  Willcox,  3  Day  (Conn.)  258;  Smith  v.  Chapin,  31  Conn.  531; 
Shannon  v.  Kinny,  1  A.  K.  Marsh.  (Ky.)  3,  10  Am.  Dec.  705 ;  Chilton 
V.  Wilson's  Heirs,  9  Humph.  (Tenn.)  399;  Cunningham  v.  Patton,  6 
Pa.  355;  Scheetz  v.  Fitzwater,  5  Pa.  126;  Overfield  v.  Christy,  7 
Serg.  &  R.  (Pa.)  173;  Johnson  v.  Nash's  Heirs,  15  Tex.  419;  Alex- 
ander V.  Pendleton,  8  Cranch  (U.  S.)  462,  3  L.  Ed.  624. 

Possession  itself  is  a  species  of  title,  of  the  lowest  grade,  it  is  true. 
yet  it  is  good  against  all  who  can  not  show  a  better,  and  by  lapse  of 
time  may  become,  under  the  statute,  perfect  and  indefeasible. 

In  considering  the  question  before  us,  it  should  be  observed  that,  in 
this  state,  it  is  not  necessary  to  the  running  of  the  statute,  that  posses- 
sion be  held  under  color  of  title.  Where  there  is  possession  of  the 
requisite  character,  the  question,  whether  there  is  color  of  title  or  not, 
is  wholly  immaterial.  Lessee  of  Paine  v.  Skinner,  8  Ohio,  167;  Yetzer 
V.  Thoman,  17  Ohio  St.  130,  91  Am.  Dec.  122. 

The  possession  must  be  connected  and  continuous.  But  it  is  admit- 
ted~tBat~tHe  possession  will  descend  to  the  heir  without  interrupting 
the  running  of  the  statute ;  and  we  see  no  good  reason  why  the  ancestor 
may  not  voluntarily  dispose  of  a  possessory  interest,  which  the  law,  in 
the  absence  of  such  disposition,  will  transmit  to  the  heir. 

The  mode  adopted  for  the  transfer  of  the  possession  may  give  rise 
to  questions  between  the  parties  to  the  transfer;  but,  as  respects  the 
rights  of  third  persons  against  whom  the  possession  is  held  adversely, 
it  seems  to  us  to  be  immaterial,  if  successive  transfers  of  possession 
were  in  fact  made,  whether  such  transfers  were  effected  by  will,  by 
deed,  or  by  mere  agreement  either  written  or  verbal.  Judgment  af- 
firmed.^^  j^  jt     /' 

16  Vikin?  Mfg.  Co.  v.  Crawford,  84  Kan.  203,  114  Pac.  240,  35  L.  R.  A.  (N. 
S.)  498  (1911) ;  Wishart  v.  McKnight,  ITS  Mass.  356,  59  N.  E.  1028,  86  Am. 
St.  Rep.  486  (1901);  Vance  v.  Wood,  22  Or.  77,  29  Pac.  73  (1S92);  Gildea  v. 
Warren,  173  Mich.  28,  138  N.  W.  232  (1912)  (but  see  Lake  Shore  &  M.  S.  Ry. 
Co.  V.  Sterling  [Mich.]  155  N.  W.  383  [1915]);  Rembert  v.  Edmondson,  99 
Tenn.  15,  41  S.  W.  935,  63  Am.  St.  Rep.  819  (1897);  Illinois  Steel  Co.  v. 
Paczocha,  139  Wis.  23,  119  N.  W.  550  (1909),  ace.  Vicksburg,  S.  &  P.  Ry.  Co. 
V.  Le  Rosen,  52  La.  Ann.  192,  26  South.  854  (1899) ;  Evans  v.  Welch,  29  Colo. 
355,  68  Pac.  776  (1902) ;  Messer  v.  Hibernia  Sav.  Soc,  149  Cal.  122,  84  Pac. 
8.35  (1906),  contra.  See  Erck  v.  Church,  87  Tenn.  575,  11  S.  W.  794,  4  L.  R.  A. 
641  (1889),  a  case  which  probably  was  not  well  tried. 

"If  the  possessions  join  by  delivery  from  predecessor  to  successor,  there 
is  no  opportunity  for  the  true  owner  to  become  seised,  and,  after  twenty 
years'  submission  to  such  inability,  he  becomes  barred.  *  *  *  Possession 
and  voluntary  transfer  thereof  are  physical  facts  provable  by  the  testimony 
of  an  eye  or  ear  witness  or  any  other  evidentiary  fact  or  conduct.  The  only 
qualification  to  the  possession  is  that  it  must  be  such  as  to  exclude  the  true 
owner,  not  derived  from  or  in  subordination  to  him.     The  only  essential  of 


Ch.  1)  POSSESSORY  TITLES  39 

RICH    V.  NAFFZIGER  et  al. 
(Supreme  Court  of  Illinois,  1912.    255  111.  98,  99  N.  E.  341.) 

Appeal  from  the  Circuit  Court  of  Tazewell  county ;  the  Hon.  T.  N. 
Green,  Judge,  presiding. 

Farmer,  J.  This  case  was  before  us  at  a  former  term  and  the 
opinion  then  delivered  will  be  found  at  page  455  of  volume  248  of  the 
Illinois  Reports,  94  N.  E.  1.  We  reversed  the  judgment  and  remanded 
the  case  for  error  in  an  instruction  given  for  appellees,  which,  in  effect, 
placed  the  burden  upon  appellant  of  proving  that  appellees  did  not 
have  title  to  the  disputed  premises  by  adversejposs^ssion.  Another 
trial  in  the  circuit  court  resulted  in  a  verdict  and  judgment  for  de- 
fendants, and  plaintiff'  has  again  brought  the  case  to  this  court  by  ap- 
peal. 

Our  former  opinion  contains  a  statement  of  the  case  and  a  history 
of  the  controversy  out  of  which  this  litigation  arose.  We  will  not  re- 
peat that  statement  here  in  full,  but  will  briefly  say  the  action  was 
quare  clausum  fregit  brought  by  appellant,  and  the  issues  made  by  the 
pleadings  im;olved  the  title  to  a  narrow  strip  of  land  off  the  west  side 
of  the  north  half  of  the  soudi-east  quarter  of  section  5,  township  25 
north,  range  2  west  of  the  third  principal  meridian,  in  Tazewell  county. 
The  strip  of  land  involved  is  nine  feet  wide  at  the  south  end,  fifteen 
feet  wide  at  the  north  end,  and  extends  from  the  south  line  of  the  north 
half  of  the  south-cast  quarter  of  section  5  to  the  north  line  of  said 
tract.  Appellant  has  title  of  record  to  the  whole  of  the  south-east 
quarter  of  said  section  5.  Christian  Naffziger  owns  tlie  north  half  of 
the  south-west  quarter  of  said  section,  and  his  son,  Peter  Naffziger,  is 
his  tenant.-  Before  Christian  Naffziger  became  the  owner  of  said  tract 
the  whole  of  the  south-west  quarter  of  said  section  5,  belonged  to 
Christian  Schwarzentraub,  who  died  in  November,  1888.  By  virtue 
of  a  decree  in  a  partition  suit  between  the  heirs  of  Schwarzentraub  the 
north  half  of  the  south-west  quarter  of  section  5  was  sold  to  Christian 
Naffziger  on  June  5, 1889,  and  a  deed  therefor  executed  to  him  by  the 
master  in  chancery.  At  the  time  of  said  sale  Fred  Schwarzentraub  was 
in  possession  of  said  eighty-acre  tract  as  tenant,  and  the  decree  pro- 
vided the  purchaser  should  have  the  rents  for  the  year  1889  and  the 
possession  of  the  premises  on  March  1,  1890.  While  the  strip  of  land 
in  controversy  was  a  part  of  the  eighty  acres  to  which  appellant  had 
paper  title,  it  was  in  the  enclosure  with  the  north  half  of  the  south- 
west quarter  from  1885  until  April,  1909,  when  appellant,  without 
leave  of  or  notice  to  appellees,  removed  the  south  forty  rods  of  fence 
from  the  line  Icnown  in  this  record  as  the  Oswald  line,  west  to  the  line 

the  transfer  is  that  the  predecessor  passes  it  to  the  successor  by  mutual  con- 
sent, as  distinguished  from  the  case  where  a  possessor  abandons  possession 
^nerally^  and  another,  finding  the  premises  unoccupied  enters  without  con- 
tact or  reTalion  with  the  former.  *  *  *"  Dodge,  J.,  in  Illinois  Steel  Co. 
V.  Paczocha,  supra. 


J^ 


40  ORIGINAL  TITLES  (Part  1 

of  the  commission  survey  established  in  March,  1909.  The  fence  was 
built  on  the  Oswald  line  as  early  as  1885,  and  thereafter  Schwarzen- 
traub  and  his  heirs  had  possession  of  and  cultivated  all  the  land  on  the 
west  side  of  the  fence  until  the  sale  to  Christian  Naftziger,  and  from 
March  1,  1890,  he  has  continued  in  possession  and  cultivated  all  the 
land  on  the  west  side  of  the  fence.  Appellant  and  his  predecessor  in 
title  have  during-  all  that  time  possessed  and  cultivated  the  land  on  the 
east  side  of  the  fence. 

It  will  be  seen  Christian  Naffziger  himself  had  not  been  in  possession 
of_the  disputed  premises  quite  twenty  years,  but  if  the  possession  of 
Schwarzentraub  be  tacked  to  his,  the  period  of  adverse  possession  is 
more  than  twenty  years.  The  proposition  principally  relied  upon  by 
appellant  for  reversal  of  the  judgment  is  that  there  was  no  privity  be- 
tween Christian  Schwarzentraub  and  Christian  Nafifziger,  and  there- 
fore the  possession  of  the  former  cannot  be  tacked  to  the  latter.  The 
rule  of  law  as  laid  down  by  the  decisions  of  this  and  other  States  is, 
that jprivity  of  estate  or  title  is  necessary  between  successive  disseizor^ 
to  authorize  joining  together  the  several  possessions  so  as  to  make  a 
continuous  possession.  Acts  of  possession  at  different  times,  by  dif- 
ferent persons  between  whom  there  is  no  privity,  cannot  be  joined. 
Ely  v.  Brown,  183  111.  575,  56  N.  E.  181. 

It  is  conceded  by  appellant  that  if  Christian  Schwarzentraub  or  his 
heirs,  if  adults,  had  conveyed  the  north  half  of  the  south-west  quarter 
of  section  5  to  Christian  Naffziger  and  had  delivered  to  him  possession 
of  the  entire  enclosure  up  to  the  division  fence,  the  possession  of 
Schwarzentraub  could  be  tacked  to  that  of  Naffziger  and  form  a  con- 
tinuous possession,  but  it  is  insisted  that  as  the  conveyance  of  the 
eighty  acres  to  Naffziger  was  made„by  tliejnaster  in  chancer}^  under 
the  decree  in  tlie  partition  suit  there  could  be  no  privity  of  estate  or 
title  between  Naffziger  andSchwarzentraub  and  that  the  two  posses- 
sions could  not  be  joined.  '  Where  a  person  having  title,  by  deed,  to  a 
lot  or  tract  of  land  described  in  the  deed  also  has  enclosed  with  it  and 
is  in  possession  of  adjoining  land  to  which  he  has  no  record  title,  and 
conveys  the  land  by  the  description  in  the  deed  and  delivers  with  it 
the  possession  of  the  entire  enclosure,  the  continuity  of  possession  will 
not  be  broken  and  the  two  possessions  will  be  joined  and  considered 
as  one  continuous  possession.  This  result,  however,  does  not  neces- 
sarily follow  the  making  of  the  deed  describing  the  land  to  which  the 
grantor  had  paper  title.  The  title  to  premises  in  possession  but  not 
described  in  the  deed  to  the  claimant  does  not  depend  upon  a  deed  but 
upon  possession  alone,  and  for  that  reason  will  not  pass  by  a  convey- 
ance describing  only  the  land  to  which  the  grantor  has  record  title,  but 
possession  of  the  land  not  described  in  the  deed  must  be  delivered. 
The  privity  between  two  disseisors  which  will  authorize  tacking  their 
possessions  is  not,  therefore,  established  by  a  deed  from  one  to  the 
other.  Illinois  Central  Railroad  Co.  v.  Hatter,  207  111.  88,  69  N.  E. 
751.    The  deed  is  proper  to  be  considered  in  determining  whether  pos- 


Ch.  1)  POSSESSORY  TITLES  41 

session  of  the  land  in  the  enclosure  not  described  in  the  deed  was  taken 
at  the  same  time  as  the  possession  of  the  land  described  therein,  and 
where  the  deed  is  followed  by  the  delivery  of  possession  of  the  entire 
enclosure  it  is  sufficient  evidence  of  a  transfer  of  possession  to  raise 
the  requisite  privity  between  tlie  parties.  But  a  paper  transfer  is  tiot 
necessary  to  connect  adverse  possessions.  It  may  be  a  means  in  es- 
tablishing the  fact  of  privity  but  is  not  the  only  means.  Illinois  Steel 
Co.  v.  Budzisz,  106  Wis.  499,  81  N.  W.  1027,  82  N.  W.  534,  48  L.  R.  A. 
830,  80  Am.  St.  Rep.  54.  In  discussing  the  circumstances  under  which 
the  possession  of  disseizors  may  be  joined,  the  Wisconsin  Supreme 
Court  said  in  Illinois  Steel  Co.  v.  Paczocha.  139  Wis.  23.  119  N.  W. 
550:  "The  only  essential  of  the  transfer  is  that  the  predecessor  passes 
k^  to  the  successor  by  mutual  consent,  as  distinguished  from  the  case 
where  a  possessor  abandons  possession  generally,  and  another,  finding 
the  premises  unoccupied,  enters  without  contract  or  relation  with  the 
J^ormer." 

In  Weber  v.  Anderson,  7Z  ^1.  439,  the  owner  of  a  lot  conveyed  all 
of  it  but  a  ten-foot  strip  off  one  side  to  the  president  of  a  plank-road 
company.  The  grantee  took  possession  of  the  entire  lot  and  enclosed 
it  with  a  fence,  claiming  tide  to  the  whole  of  it,  and  remained  in  pos- 
session from  1849  to  1863.  It  then  sold  the  premises,  and  in  the  con- 
veyance described  them  as  they  were  described  in  the  deed  made  to  it 
but  delivered  to  the  purcliaser  possession  of  the  entire  lot.  The 
purchaser  held  possession  until  May,  1870,  and  then  conveyed 
the  entire  lot  to  another.  One  of  the  questions  in  the  case  when 
it  was  before  this  court  w^as  whether  the  possession  of  the  plank- 
road  company  and  its  grantee  could  be  joined  and  considered  as 
a  continuous  possession  for  twenty  years.  It  was  contended  by  the 
appellant  that  the  transfer  of  possession  could  not  be  proved,  by  parol 
but  must  be  proved  by  deed.  I  'ihisTourt  held  that  po  deed  is  necessary 
to  support  title  by  adverse  possession,  but  that  it  is  sufficient  for  a 
party  to  take  possession  under  a  claim  of  ownership  and  hold  the  prem- 
ises for  the  time  required  by  the  statute  to  complete  the  bar;  that  a 
deed^  isnot  necessary  to  prove  the  transfer  of  the  possession  but  such 
traiisfer  may_  be  shown  by  parol.  The  court  referred  to  and  quoted 
from  decisions  of  other  States,  as  follows :  "In  the  case  of  Smith  v. 
Chapin,  31  Conn.  531,  the  Supreme  Court  of  Connecticut,  in  deciding 
a  question  similar  to  the  one  in  this  case,  says :  'Doubtless  the  posses- 
sion must  be  connected  and  continuous,  so  that  the  possession  of  the 
true  owner  shall  not  constructively  intervene  between  them;  but  such 
continuity  and  connection  may  be  effected  by  any  conveyance,  agree- 
ment or  understanding  which  has  for  its  object  a  transfer  of  the  rights 
of  the  possessor  or  of  his  possession,  and  is  accompanied  by  a  transfer 
of  possession  in  fact.'  In  Menkens  v.  Blumenthal,  27  Mo.  203,  it  was 
held  whether  one  occupant  receives  his  possession  from  a  prior  one  or 
is  a  mere  intruder  upon  an  abandoned  lot  is  a  question  of  fact,  which 
may  be  determined  by  any  testimony  which  is  legitimate  and  pertinent. 


^ 


42  ORIGINAL  TITLES  (Part  1 

We  know  of  no  rule  of  evidence  which  confines  the  proof  to  a  deed  or 
written  instrument.  In  Crispen  v.  Hannavan,  50  Mo.  544,  the  doc- 
trine announced  in  the  last  case  cited  is  approved,  and  the  court  adds : 
'Not  even  a  writing  is  necessary  if  it  appear  that  the  holding  is  con- 
tinuous and  under  the  first  entry.'  In  AIcNeely  v.  Langan,  22  Ohio  St. 
32,  the  same  question  arose,  and  it  was  there  held :  'The  mode  adopted 
forthe  transfer  of  the  possession  may  give  rise  to  questions  between 
the  parties  to  the  transfer,  but  as  respects  the  rights  of  third  persons, 
against  wliom  the  possession  is  held  adversely,  it  seems  to  us  to  be  im- 
material, if  successive  transfers  of  possession  were,  in  fact,  made, 
whether  such  transfers  were  effected  by  will,  by  deed  or  by  mere  agree- 
ment, either  written  or  verbal.'  " 

In  Faloon  v.  Simshauser,  130  111.  649,  22  N.  E.  835,  it  was  contended 
by  the  appellant  that  in  order  to  avail  of  the  bar  under  the  Statute 
of  Limitations,  privity  of  estate  with  the  prior  disseizors  must  be 
shown  by  purchase  and  conveyance  of  disseizin.  Upon  this  question 
the  court  said :  "It  is  a  sufficient  answer  to  this  claim,  and  to  the  au- 
thorities cited  to  show  it  is  essential  to  establish  by  a  deed  that  appellees 
are  connected  with  the  adverse  possessions  of  Allen  and  Sarah  B. 
Withers,  to  say  that  the  question  is  not  an  open  one  in  this  State,  and 
that,  the  rule  having  been  years  ago  determined  otherwise  by  this  court 
and  it  being  a  rule  of  property  upon  which  many  titles  may  depend, 
such  former  ruling  will  be  adhered  to  without  any  re-examination  of 
the  conflicting  authorities  in  respect  thereto." 

The  privity  required  is  that  there  must  be  a  continuous  possession  by 
mutual  consent,  so  that  the  possession  of  the  true  owner  shall  not  con- 
structively intervene.  The  possession  of  one  who  had  abandoned  the 
premises  could  not  be  joined  with  the  possession  of  one  who  found 
them  unoccupied,  and,  without  any  connection  with  the  former  pos- 
session, entered  upon  the  land.  In  the  case  before  us  Christian 
Schwarzentraub  was  at  the  time  of  his  death,  and  had  been  for  some 
years,  in  the  possession  of  tlie  land  in  controversy.  He  was  prima 
facie  the  owner  of  it,  and  upon  his  death  his  estate  in  it  was  cast  upon 
his  heirs,  to  whom  his  possession  was  transferred  by  operation  of  law. 
Gosselin  v.  Smith,  154  111.  74,  39  N.  E.  980.  They  remained  in  posses- 
sion until  after  the  partition,  when  they  surrendered  their  possession 
to  Christian  Naffziger.  The  title  he  acquired  by  the  master's  deed  did 
not  describe  or  embrace  the  strip  of  land  in  controversy,  but  the  proof 
shows'  he  succeeded  the  Schwarzentraubs  in  the  possession  of  it,  and 
we  are  of  opinion  it  must  be  held  the  two  possessions  are  lawfully 
joined. 

The  proof  of  appellees  was  abundant  to  the  eft"ect  that  their  posses- 
sion was  adverse,  and  it  was  not  sufficiently  weakened  by  the  testimony 
on  behalf  of  appellant  that  we  can  say  the  jury  were  not  justified  in 
finding  the  evidence  established  title  in  appellees  by  adverse  possession, 
and  in  our  opinion  there  was  no  error  in  the  rulings  of  the  court  in  the 
admission  of  testimony  that  unduly  prejudiced  appellant.     We  have 


Ch.  1)  POSSESSORY  TITLES  43 

read  the  evidence  and  are  satisfied  the  verdict  was  v^^arranted  by  it. 
We  can  see  no  reason  to  suppose  that  a  different  result  might  obtain 
on  another  trial.  The  proof  of  appellees  met  the  requirements  of  the 
rule  stated  in  Zirngibl  v.  Calumet  Dock  Co.,  157  111.  430,  42  N.  E.  431, 
and  other  decisions  of  this  court,  upon  the  degree  of  proof  necessary 
to  establish  title  by  adverse  possession. 

No  substantial  error  was  committed  by  the  trial  court  in  giving  and 
refusing  instructions.    Judgment  affirmed. 


SECTION  4.— ADVERSE  POSSESSION 


RICARD  v.  WILLIAMS. 
(Supreme  Court  of  the  United  States,  1822.    7  Wheat.  59,  5  L.  Ed.  398.) 

Error  to  the  circuit  court  of  the  United  States  for  the  district  of 
Connecticut. 

This  was  a  suit  instituted  by  the  defendants  in  error  against  the 
plaintiff  in  error,  in  the  court  below.  The  original  action  is  commonly 
known  in  Connecticut  by  the  name  of  an  action  of  disseisin,  and  is  a 
real  action,  final  upon  the  rights  of  the  parties,  and  in  the  nature  of  a 
real  action  at  the  common  law.  The  cause  was  tried  upon  the  general 
issue,  nul  tort  nul  disseisin,  and  a  verdict  being  found  for  the  demand- 
ants, a  bill  of  exceptions  was  taken  to  the  opinion  of  the  court  upon 
matters  of  law  at  the  trial. 

The^  demandants  claimed  the  estate  in  controversy  by  purchase  from 
the  administrator  of  William  Dudley,  at  a  sale  made  by  him  for  the 
payment  of  the  debts  of  his  intestate,  pursuant  to  the  laws  of  Connecti- 
cut, which  authorize  a  sale  of  the  real  estate  of  any  person  deceased, 
for  the  payment  of  his  debts,  when  the  personal  assets  are  insufficient 
for  that  purpose.  In  order  to  establish  the  title  of  William  Dudley 
in  the  premises,  the  demandants  proved  that  Thomas  Dudley,  the  fa- 
ther of  William,  was,  in  his  lifetime,  possessed  of  the  premises,  as  par- 
cel of  what  were  called  the  Dudley  lands,  and  died  possessed  of  the 
same  in  1769,  leaving  seven  children,  of  whom  William  was  the  eldest, 
being  of  about  the  age  of  fourteen  years,  and  Joseph  Gerriel,  the 
youngest,  being  about  four  years  of  age.  Upon  the  death  of  Thomas 
Dudley,  Joseph  Mayhew,  the  guardian  of  William,  entered  into  posses- 
sion of  the  Dudley  lands,  and  of  the  demanded  premises  as  parcel,  tak- 
ing the  rents  and  profits  in  his  behalf  during  his  minority ;  and  upon  his 
arrival  at  full  age  William  entered  and  occupied  the  same,  taking  the 
rents  and  profits  to  his  own  use,  until  his  death,  which  happened  in  the 
year  1786,  all  his  brothers  and  sisters  being  then  living.     During  the- 


44  ORIGINAL  TITLES  (Part  1 

life  of  William,  no  other  person  claimed  any  right  to  enter  or  occupy 
the  premises,  except  that  his  mother  received  one  third  of  the  rents  and 
profits,  until  she  died  in  the  year  1783.  During  his  life,  and  while  in 
possession  of  the  premises,  William  always  declared  that  he  held  the 
same  only  for  life,  and  tlierefore  would  not  allow  any  improvements 
on  them  at  his  expense ;  no  leases  were  made  by  him  except  for  short 
periods ;  and  no  attempt  was  made  by  him  to  sell  or  convey  the  prem- 
ises ;  and  he  declared  that  he  had  no  right  to  sell  them,  and  that  upon 
his  death  they  would  descend  to  his  son  Joseph  Dudley,  under  whom 
the  tenant  derived  his  title,  in  the  manner  hereafter  stated.  No  ad- 
ministration was  ever  taken  in  Connecticut  upon  the  estate  of  William 
Dudley,  until  1814,  and  his  estate  was  then  declared  insolvent;  and  in 
1817,  the  lands  in  controversy  were  sold  by  the  administrator,  by  order 
of  the  court  of  probates,  for  the  payment  of  tlie  debts  found  due  under 
the  commission  of  insolvency. 

To  rebut  the  title  of  the  demandants,  and  to  establish  his  own,  the 
tenant  proved  that  William  Dudley  died  intestate,  leaving  seven  chil- 
dren, the  eldest  of  whom  was  Joseph  Dudley.  Upon  the  death  of  his 
father,  the  guardian  of  Joseph  (the  latter  being  within  age,)  entered 
into  possession  of  the  Dudley  lands,  and  of  the  demanded  premises  as 
parcel,  and  used  and  occupied  the  same,  receiving  the  rents  and  profits 
in  behalf  of  Joseph,  until  his  arrival  at  full  age,  when  Joseph  himself 
entered  into  possession,  claiming  them  as  his  own,  and  taking  the  rents 
and  profits  to  his  own  use,  and  holding  all  other  persons  out  of  pos- 
session, until  the  year  18irand  1812,  when  he  sold  the  demanded  prem- 
ises, and  the  tenant,  either  by  direct  or  mesne  conveyances  under  Jos- 
eph, came  into  possession,  and  has  ever  since  held  the  premises  in  his 
own  right.  In  the  year  1811,  Samuel  Dudley,  the  brother  of  Joseph, 
claimed  title  to  some  of  the  Dudley  lands  possessed  by  Joseph,  and 
brought  an  action  of  ejectment  for  the  recovery  of  them,  but  the  suit 
was  compromised  by  Joseph's  paying  him  about  $2,000,  and  about  the 
same  time  Joseph  settled  with  another  of  his  brothers,  but  did  not  pay 
him  any  thing.  But  Joseph  never  admitted  that  his  brothers  or  sister 
had  any  interest  in  the  lands;  and  said  he  could  hold  them,  and  did 
hold  them,  in  the  same  manner  as  he  held  the  lands  in  Massachusetts. 

The  will  of  Governor  Dudley,  which  was  admitted  to  probate  in 
Massachusetts  in  1720,  was  also  in  evidence,  but  neither  party  estab- 
lished any  privity  or  derivation  of  title  under  it. 

Upon  these  facts,  the  tenant  prayed  the  court  to  instruct  the  jury, 
that  the  demandants  had  not  made  out  a  title  in  themselves,  nor  in 
William  Dudley.  Not  in  themselves,  because  the  sale  by  the  adminis- 
trator to  the  demandant  was  void,  by  force  of  the  statute  regarding 
the  sale  of  disputed  titles,  the  tenant  being  in  possession  of  the  prop- 
erty at  the  time  of  the  sale,  claiming  it  as  his  own,  and  that  William 
Dudley  had  acquired  no  title  to  the  property  in  question  by  possession, 
as  he  claimed  to  hold  the  same  only  during  his  life,  and  could  therefore 
acquire  no  title,  except  for  life  by  any  length  of  possession,  and  that 


Ch.  1)  POSSESSORY   TITLES  45 

if  he  could  acquire  title  by  possession,  if  this  estate  descended  from 
Thomas  Dudley,  said  William  could  not  in  seventeen  years,  acquire  a 
title  against  his  brothers  and  sisters,  or  at  least  against  those  of  them 
who  had  not  been  of  full  age  for  five  years  before  the  death  of  said 
William ;  and  if  the  demandants  could  recover  at  all,  it  could  only  be 
for  that  proportion  of  the  estate  which  descended  from  William  as  one 
of  the  heirs  of  Thomas  Dudley. 

The  tenant  further  prayed  the^ gomt  to  instruct  the  jury  that  if  they 
found  that  Joseph  Dudley  had,  for  more  than  fifteen  years  before  he 
sold  the  land  in  controversy,  been  in  possession  of  the  same,  exclusively 
claiming  them  as  his  own,  and  holding  out  all  others,  he  had  gained  a 
complete  title  to  the  property. 

The  tenant  further  claimed  that  the  court  ought  to  have  instructed 
the  jury,  that  under  the  circumstances  attending  the  possession  of  said 
lands  by  William  Dudley,  the  father,  and  by  Joseph  Dudley,  and  the 
length  of  time  which  had  elapsed  since  the  death  of  said  William,  with- 
out any  claim  on  the  part  of  the  creditors  of  said  William,  the  jury 
might  presume  a  grant  from  some  owner  of  the  land  to  William  for  life, 
with  remainder  to  his  eldest  son.  But  the  court  did  charge  and  instruct 
the  jury  that  the  sale  by  the  administrator  under  an  order  of  court  was 
not  within  the  statute  regarding  disputed  titles,  and  was  not  therefore 
void.  That  William  Dudley,  by  mistaken  constructions  of  the  will  of 
Governor  Dudley,  might  have  claimed  an  estate  for  life  in  the  premises, 
and  that  such  mistake  would  not  operate  to  defeat  his  title  by  posses- 
sion. That  the  length  of  time  in  which  this  estate  had  been  occupied 
by  WilHam  and  Joseph  Dudley,  would  bar  any  claims  by  the  other  chil- 
dren of  Thomas  Dudley,  deceased,  and  that  the  jury  were  authorized 
to  presume  a  grant  by  said  Children  to  their  brother  William  Dudley, 
deceased,  and  therefore,  if  the  demandants  recovered,  they  must  re- 
cover the  whole  of  the  premises. 

The  court  also  charged  the  jury  that,  as  against  the  creditors  of 
William  Dudley,  neither  Joseph  Dudley  nor  the  tenant  had  gained  title 
to  the  lands  in  controversy  by  possession,  and  that  tlie  jury  were  not 
authorized  to  presume  a  grant  to  Joseph. 

To  which  several  opinions  of  the  court  the  tenant,  by  his  counsel, 
excepted. 

Story,  J.^^     The  j^rincipal  questions  which  have  arisen,  and  have  ''^ 

been  argued  here,  upon  the  instructions  given  by  the  circuit  court,  and 
to  which  alone  the  court  deem  it  necessary  to  direct  their  attention, 
are:  1.  Whether  upon  the  facts  stated,  a  legal  presumption  exists, 
that  William  Dudley  died  seised  of  an  estate  of  inheritance  in  the  de- 
manded premises ;  and,  if  so,  2.  Whether  an  exclusive  possession  of 
the  demanded  premises,  by  Joseph  Dudley  and  his  grantees,  after  the 
death  of  William,  under  an  adversary  claim,  for  thirty  years,  is  a  bar  to 
the  entry  and  title  of  the  demandants  under  the  administration  sale. 

17  Part  of  the  opinion  is  omitted. 


46  OKIGINAL   TITLES  (Part  1 

It  is  to  be  considered,  that  no  paper  title  of  any  sort,  is  shown  in  Wil- 
liam Dudley  or  his  son  Joseph.  Their  title,  whatever  it  may  be,  rests 
upon  possession ;  and  the  nature  and  extent  of  that  possession  must  be 
judged  of  by  the  acts  and  circjumstances  which  accompany  it,  anijquali— 
fy,  explain,  or  control  it.  (Undoubtedly,  if  a  person  be  found  in  pos- 
session of  land,  claiming  it  as  his  own,  in  fee,  it  is  prima  facie  evidence 
of  his  ownership,  and  seisin  of  the  inheritance.  But,_it_is  not  the  pos- 
session alone,  but  the  possession  accompanied  with  tlie  ^aii^_fii_liie 
fee,  that  gives  this  effect,  by  construction  of  law  to  the  acts  of  the 
party.  Possession,  per  se,  evidences  no  more  than  the  mere  fact  of 
present  occupation,  by  right;  for  the  law  will  not  presume  a  wrong; 
and  that  possession  is  just  as  consistent  with  a  present  interest,  under 
a  lease  for  years  or  for  life,  as  in  fee.  From  the  very  nature  of  the 
case,  therefore,  it  must  depend  upon  the  collateral  circumstance^^  what 
is  the  quality  and  extent  of  the  interest  claimed  by  the  party;  and  to 
that  extent,  and  that  only,  will  the  presumption  of  law  go  in  his  favor. 
And  the  declarations  of  the  party,  while  in  possession,  equally  with  his 
acts,  must  be  good  evidence  for  this  purpose.  If  he  claims  only  an 
estate  for  life,  and  that  is  consistent  with  his  possession,  the  law  will 
not,  upon  the  mere  fact  of  possession,  adjudge  him  to  be  in  under  a 
higher  right,  or  a  larger  estate.  If,  indeed,  the  party  be  in  under  title, 
and,  by  mistake  of  law,  he  supposes  himself  possessed  of  a  less  estate 
in  the  land  than  really  belongs  to  him,  the  law  will  adjudge  him  in  pos-^ 
session  of,  and  remit  him  to,  his  full  right  and  title.  rFor  a  mistake  of  | 
law  shall  not,  in  such  case,  prejudice  the  right  of  the  party;  and  his- 
possession,  therefore,  must  be  held  coextensive  with  his  right.  This  is " 
the  doctrine  in  Littleton,  section  695,  cited  at  the  bar;  and  better  au- 
thority could  not  be  given,  if  indeed  so  obvious  a  principle  of  justice 
required  any  authority  to  support  it.  But  there  the  party  establishes  a 
title  in  point  of  law  greater  than  his  claim ;  whereas,  in  the  case  now 
supposed,  the  party  establishes  nothing  independent  of  his  possession, 
and  that  qualified  by  his  own  acts  and  declarations.  This  is  the  dis- 
tinction between  the  cases,  and  accounts  at  once  for  the  different  prin- 
ciples of  law  applicable  to  them. 

It  has  also  been  argued  at  the  bar  that  a  person  who  commits  a  dis- 
seisin cannot  qualify  his  own  wrong,  but  must  be  considered  as  a  dis- 
seisor in  fee.  This  is  generally  true ;  but  it  is  a  rule  introduced  for  the 
benefit  of  the  disseisee,  for  the  sake  of  electing  his  remedy.  For  if  a 
man  enter  into  possession,  under  a  supposition  of  a  lawful  limited  right, 
as  under  a  lease,  which  turns  out  to  be  void,  or  as  a  special  occupant, 
where  he  is  not  entitled  so  to  claim,  if  he  be  a  disseisor  at  all,  it  is  only 
at  the  election  of  the  disseisee.  Com.  Dig.  Seisin,  F.  2,  &  F.  3 ;  1  Roll. 
Abrid.  662,  L.  45;  Id.  661,  L.  45.  There  is  nothing  in  the  law  which 
prevents  the  disseisee  from  considering  such  a  person  as  a  mere  tres- 
passer, at  his  election ;  or  which  makes  such  an  entry,  under  mistake 
for  a  limited  estate,  a  disseisin  in  fee  absolutely,  and  at  all  events,  so 
that  a  descent  cast  would  toll  the  entry  of  the  disseisee.     But  were  it 


Ch.  1)  POSSESSORY   TITLES  47 

Otherwise,  in  order  to  apply  the  doctrine  at  all,  it  must  appear  that  the 
party  f ovmd  in  possession  entered  without  right,  and  was,  in  fact,  a  dis- 
seisor; for  if  his  entry  were  congeable,  or  his  possession  lawful,  his 
entry  and  possession  will  be  considered  as  limited  by  his  right.  For 
the  law  will  never  construe  a  possession  tortious  unless  from  necessity. 
On  the  ofher  hand,  it  will  consider  every  possession  lawful,  the  com- 
mencement and  continuance  of  which  is  not  proved  to  be  wrongful. 
And  this  upon  the  plain  principle,  that  every  man  shall  be  presumed 
to  act  in  obedience  to  his  duty,  until  the  contrary  appears.  When, 
therefore,  a  naked  possession  is_m_proof,  unaccompanied  by  evidence 
as  to  its  origin,  it  will  be  deemed  lawful  and  coextensive  with  thS  right 
set  up  by  the  party.  If  the  party  claim  only  a  limited  estate,  and  not  a 
fee,  the  law  will  not,  contrary  to  his  intentions,  enlarge  it  to  a  fee. 
And  it  is  only  when  the  party  is  proved  to  be  in  by  disseisin,  that  the 
law  will  construe  it  a  disseisin  of  the  fee,  and  abridge  the  party  of  his 
right  to  qualify  his  wrong. 

Now,  in  the  case^at  bar,  it  is  not  proved  of  what  estate  Thomas  Dud- 
ley died  seised  in  the  premises.  His  possession  does  not  appear  to 
have  been  accompanied  with  any  claim  of  right  to  the  inheritance.  It 
might  have  been  an  estate  for  life  only,  and  as  such  have  had  a  lawful 
commencement.  If  it  were  intended  to  be  argued  that  he  had  a  fee  in 
the  premises,  it  should  have  been  established  by  competent  proof  that 
he  was  in  possession,  claiming  a  fee  by  right  or  by  wrong.  No  such 
fact  appears.  The  only  fact,  leading  even  to  a  slight  presumption  of 
that  nature  is,  that  his  widow  took  one  third  of  the  rents  and  profits 
during  her  life.  But  whether  this  was  under  a  claim  of  dower,  or  any 
other  right,  is  not  proved.  The  circumstance  is  equivocal  in  its  charac- 
ter, and  is  unexplained ;  and  the  inference  to  be  deduced  from  it,  of  a 
descendible  estate  in  her  husband,  is  rebutted  by  the  fact  that  immedi- 
ately on  his  death  his  son  WiUiam  entered  into  the  premises,  claiming 
a  life  estate,  and  held  them  during  his  life  as  his  own,  without  any 
claim  on  the  part  of  the  co-heirs  of  his  father  to  share  in  the  estate. 
There  is  then  nothing^in  the  case,  from  which  it  can  be  judicially  infer- 
redtjhat  Thomas  was  ever  seised  of  an  estate  of  inheritance  in  the 
premises,  and,  of  course,  none  of  a  descent  from  him  to  his  heirs. 

Then,  as  to  the  estate  of  his  son  William,  in  the  premises.  It  is  ar- 
gued that  William  had  an  estate  in  fee,  by  right  or  by  wrong.  That  if 
his  entry,  either  in  person  or  by  his  guardian,  was  without  right,  it  was 
a  disseisin,  and  invested  him  with  a  wrongful  estate  in  fee.  If  with 
right,  then  it  must  have  been  as  a  co-heir  of  his  father,  and  a  grant 
ought  to  be  presumed  from  the  other  co-heirs  to  him,  releasing  their 
title  and  confirming  his. 

The  doctrine,  as  to  presumptions  of  grants,  has  been  gone  into 
largely  on  the  argument,  and  the  general  correctness  of  the  reasoning 
is  not  denied.  There  is  no  difference  in  the  doctrine,  whether  the  grant 
relate  to  corporeal  or  incorporeal  hereditaments.  A  grant  of  land  may 
as  well  be  presumed  as  a  grant  of  a  fishery,  or  of  common,  or  of  a  way. 


48  ORIGINAL  TITLES  (Part  1 

Presumptions  of  this  nature  are  adopted  from  the  general  infirmity  of 
human  nature,  the  difficulty  of  preserving  muniments  of  title,  and  the 
public  policy  of  supporting  long  and  uninterrupted  possessions.  They 
are  founded  upon  the  consideration  that  the  facts  are  such  as  could 
not,  according  to  the  ordinary  course  of  human  affairs  occur,  unless 
there  was  a  transmutation  of  title  to,  or  an  admission  of  an  existing 
adverse  title  in,  the  party  in  possession.  They  may,  therefore,  be  en- 
countered and  rebutted  by  contrary  presumptions ;  and  can  never  fairly 
arise  where  all  the  circumstances  are  perfectly  consistent  with  the  non- 
existence of  a  grant;  a  fortiori,  they  cannot  arise  where  the  claim  is  of 
such  a  nature  as  is  at  variance  with  the  supposition  of  a  grant.  In 
general,  it  is  the  policy  of  courts  of  law  to  limit  the  presumption  of 
grants  to  periods  analogous  to  those  of  the  statute  of  limitations,  in 
cases  where  the  statute  does  not  apply.  But  where  the  statute  applies 
it  constitutes,  ordinarily,  a  sufficient  title  or  defence,  independently  of 
any  presumption  of  a  grant,  and  therefore  it  is  not  generally  resorted 
to.  But  if  the  circumstances  of  the  case  justify  it,  a  presumption  of  a^ 
^rant  may  as  well  be  made  in  the  one  case  as  in  the  other ;  and  where . 
the  other  circumstances  are  very  cogent  and  full,  there  is  no  absolute 
bar  against  the  presumption  of  a  grant,  within  a  period  short  of  the 
statute  of  limitations.  See  Phillips  on  Evidence,  ch.  7,  §  2,  p.  126; 
Foley  V.  Wilson,  11  East,  56. 

If  we  apply  the  doctrines  here  asserted  to  the  case  at  bar,  we  may 
ask,  in  the  first  place,  what  ground  there  is  to  presume  any  grant  of 
the  premises  to  William  Dudley,  and  if  any,  what  was  the  quantity  or 
quahty  of  his  estate?  It  has  been  already  stated  that  there  is  no  suffi- 
cient proof  that  his  father  died  seised  of  a  descendible  estate  in  the 
premises ;  and  if  so,  the  entry  of  William  by  his  guardian,  or  in  person, 
cannot  be  deemed  to  have  been  under  color  of  title  as  heir;  and  in 
point  of  fact  he  never  asserted  any  such  title.  For  the  same  reason, 
no  estate  can  be  presumed  to  have  descended  to  his  co-heirs;  and  if  so, 
the  very  foundation  fails  upon  which  the  presumption  of  a  grant  from 
them  to  William  can  be  built ;  for  if  they  had  no  title,  and  asserted  no 
title,  there  is  no  reason  to  presume  that  he  or  they  sought  to  make  or 
receive  an  inoperative  conveyance.  There  is  no  pretence  of  any  pre- 
sumption of  a  grant  in  fee  from  any  other  person  to  William ;  and  as 
there  is  no  evidence  of  any  connection  with  the  will  of  Governor  Dud- 
ley, or  of  any  claim  of  title  under  it  by  William,  there  does  not  seem 
any  room  to  presume  that  he  was  in  under  that  will,  upon  mistaken 
constructions  of  his  title  derived  from  it.  There  is  this  further  diffi- 
culty in  presuming  a  grant  from  the  co-heirs  to  William,  that  at  the 
time  of  his  own  entry,  as  well  as  that  of  his  guardian,  all  of  them  were 
under  age,  and  incapable  of  making  a  valid  conveyance.  During  this 
period,  therefore,  no  such  conveyance  can  be  presumed ;  and  yet  Wil- 
liam, during  all  this  period,  claimed  an  exclusive  right,  and  had  an  ex- 
clusive possession  of  the  whole  to  his  own  use;  and  his  subsequent 
possession  was  but  a  continuation  of  the  same  claim  without  any  inter- 


Cll.-  1)  POSSESSORY  TITLES  49^ 

ference  on  the  part  of  the  co-heirs.  In  point  of  fact  the  youngest 
brother  arrived  at  age  about  the  time  of  WilHam's  death  ;  and  as  to  two 
others  of  the  co-heirs,  the  statute  of  Hmitations  of  Connecticut,  as  to 
rights  of  entry,  would  not  then  run  against  them.  The  presumption  of 
a  grant  from  them  is  therefore,  in  this  view,  also,  affected  with  an  in- 
trinsic infirmity. 

in  addition  to  all  this,  William  never  .claimed. .any  estate  in  fee  in 
thejpremises.  His  declaration  uniformly  was  that  he  had  a  life  estate 
only,  and  that  upon  his  death  they  would  descend  to  his  son  Joseph. 
Of  the  competency  of  this  evidence  to  explain  the  nature  of  his  pos- 
session and  title,  no  doubt  can  reasonably  be  entertained.  His  title 
being^  evidenced  only  by  possession,  it  must  be  limited  in ,  itsextentjQ 
the  claim  which  he  asserted.  If,  indeed,  it  had  appeared  that  he  was 
in  under  a  written  title  which  gave  him  a  larger  estate,  his  mistake  of 
the  law  could  not  prejudice  him;  but  his  seisin  would  be  coextensive 
with,  and  a  remitter  to,  that  title.  But  there  is  no  evidence  of  any 
written  title,  or  of  any  mistake  of  law  in  the  construction  of  it.  JFor 
aught  that  appears,  William's  estate  was  exactly  what  he  claihied,  a 
fife-estate  only,  and  the  inheritance  belonged  to  his  son  Joseph.  It  is 
material  also  to  observe  that  the  acts  of  the  parties,  and  the  possession 
of  the  estates  during  the  period  of  nearly  fifty  years,  are  in  conformity 
with  this  supposition,  and  at  war  with  any  other.  Why  should  Wil- 
liam's brothers  and  sisters  have  acquiesced  in  his  exclusive  possession 
during  his  whole  life,  if  the  inheritance  descended  from  their  father  ? 
Why  should  Joseph's  brothers  and  sisters  have  acquiesced  in  his  exclu- 
sive possession  during  a  period  of  twenty-five  years  without  claim,  if 
their  father  William  was  seised  of  the  inheritance?  Why  should  the 
guardians  of  William  and  Joseph  have  successively .  entered  into  the 
premises,  claiming  the  whole  in  right  of  their  respective  wards,  if  their 
title  was  not  deemed  clearly  and  indisputably  an  exclusive  title,  or  if 
they  were  in  by  descent  under  the  title  of  their  fathers?  If,  indeed,  a 
presumption  of  a  grant  is  to  be  made,  it  should  be  of  a  grant  con- 
forming to  the  declarations  and  acts  of  possession  of  the  parties  during 
the  whole  period;  and  if  any  grant  is  to  be  presumed  from  the  facts 
of  this  case,  it  is  a  grant  of  a  particular  estate  to  William,  with  a  re- 
mainder of  the  inheritance  to  Joseph,  or  in  the  most  favorable  view  of 
an  estate  tail  to  William,  upon  whose  death  the  estate  would  descend 
to  Joseph,  as  his  eldest  son  per  formam  doni.  If  Thomas,  the  grand- 
father, were  proved  to  have  been  the  owner  of  the  fee,  there  is  nothing 
in  the  other  circumstances  which  forbids  the  presumption  of  such  a 
grant  from  him ;  but  as  the  cause  now  stands,  it  may  as  well  have  been 
derived  from  some  other  ancestor,  or  from  a  stranger.    It  is  therefore 


the  opinion  of  this  court  that  the  circuit  court  erred  in  directing  the 
jury  that  William,  by  mistaken  constructions  of  the  will  of  Governor 
Dudley,  might  have  claimed  an  estate  for  life  in  the  premises,  and  that 
such  mistake  would  not  operate  to  defeat  his  title  by  possession,  for 
Aig.Prop. — 4 


50  ORIGINAL  TITLES  (Part  1 

there  was  no  evidence  that  William  ever  claimed  under  that  will ;  and 
also  erred  in  instructing  the  jury  that  they  were  authorized  to  pre- 
sume a  grant  by  the  children  of  Thomas  to  William.  The  compromise 
entered  into  by  Joseph  with  two  of  his  brothers  is  not  thought  to 
change  the  posture  of  the  case,  because  that  compromise  was  made 
with  an  explicit  denial  of  their  right;  and  is  therefore  to  be  considered 
as  an  agreement  for  a  family  peace.     *     *     * 

The  remaining  consideration  under  this  head  is,  whether  the  posses- 
sion of  Joseph  Dudley  can  be  considered  as  an  adverse  possession  so 
as  to  toll  the  right  of  entry  of  the  heirs,  and,  consequently,  extinguish, 
by  the  lapse  of  time,  their  right  of  action  for  the  land,  as  well  as  ex- 
tinguish by  analogy  of  principle  the  power  of  the  administrator  to  sell 
the  land.  It  is  said  that  the  entry  of  Joseph  into  the  premises  is  con- 
sistent with  the  potential  right  of  the  creditors ;  that  he  had  a  right  to 
enter  as  a  co-heir  of  his  father,  and  jf  he_entered  as  co-heir,  his  pos- 
session  was  not  adverse,  but  was  a  possession  for  the  other  heirs  and 
creditors,  and  he  could  not  afterwards  hold  adversely,  or  change  the 
nature  of  his  possession,  for  the  creditors  might  always  elect  to  con- 
sider him  their  trustee.  There  is  no  doubt  that  in  general,  the  entry  of 
one  heir  will  enure  to  the  benefit  of  all,  and  that  if  the  entry  is  made 
as  heir,  and  without  claim  of  an  exclusive  title,  it  will  be  deemed  an 
entry  not  adverse  to,  but  in  consonance  with,  the  rights  of  the  other 
heirs.  But  it  is  as  clear  that  one  heir  may  disseise  his  co-heirs,  and 
hold  an  adverse  possession  against  them,  as  well  as  a  stranger.  And, 
notwithstanding  an  entry  as  heir,  the  party  may,  afterwards,  by  dis- 
seisin of  his  co-heirs,  acquire  an  exclusive  possession  upon  which  the 
statute  will  run.  An  ouster,  or  disseisin,  is  not,  indeed,  to  be  presume;d 
from  the  mere  fact  of  sole  possession ;  but  it  may  be  proved  by  such 
possession,  accompanied  with  a  notorious  claim  of  an  exclusive  right. 
And  if  such  exclusive  possession  will  run  against  the  heirs,  it  will,  by 
parity  of  reason,  run  against  the  creditors.  For  the  heirs,  qua  heirs, 
are  in  no  accurate  sense  in  the  estate  as  trustees  of  the  creditors.  They 
hold  in  their  own  right  by  descent  from  their  ancestor,  and  take  the 
profits  to  their  own  use  during  their  possession ;  and  the  most  that  can 
be  said  is,  that  they  hold  consistently  with  the  right  of  the  creditors. 
The  creditors,  in  short,  have  but  a  lien  on  the  land  which  may  be  en- 
forced through  the  instrumentality  of  the  administrator  acting  under 
the  order  of  the  court  of  probates. 

But  in  order  to  apply  the  argument  itself,  it  is  necessary  to  prove 
that  the  ancestor  had  an  estate  of  inheritance,  and  that  the  party 
entered_as  _hein  Now,  inthe  c^e^  at  bar,  all  the  circumstances  point 
the  other__wa3:.  There  is  not,  as  has  been  already  intimated,  any 
proof  that  William  Dudley  died  seised  of  an  inheritance  in  the  land; 
and  there  is  direct  proof  that  he  asserted  the  inheritance  to  be  in  his 
son  Joseph ;  and  the  entry  of  the  guardian  of  Joseph,  as  well  as  his 
own  entry,  after  his  arrival  of  age,  was  under  an  exclusive  claim  to 
the  whole,  not  by  descent,  but  by  title  distinct  or  paramount     There 


Ch.  1)  POSSESSORY  TITLES  51 

is  certainly  no  incapacity  in  an  heir  to  claim  an  estate  by  title  dis- 
tinct or  paramount  to  that  of  his  ancestor ;  and  if  his  possession  is 
exclusive  under  such  claim,  and  he  holds  all  other  persons  out  until 
the  statute  period  has  run,  he  is  entitled  to  the  full  benefit  and  pro- 
tection of.  the  bar.  It  appears  to  us,  therefore,  that  the  jury  ought 
to  have  been  instructed,  that  if  they  were  satisfied  that  Joseph's 
possession  was  adverse  to  that  of  the  other  heirs,  and  under  a  claim 
of  title  distinct  from,  or  paramount  to  that  of  his  father,  during  his 
twenty-five  years  of  exclusive  possession,  the  entry  of  the  purchaser, 
under  the  administrator's  sale,  was  not  congeable,  and  that  the  pow- 
er of  the  creditor  over  the  estate  was  extinguished.  There  was  there- 
fore error  in  the  opinion  of  the  court  to  the  jury,  that.  js_against  the 
creditors  of  William  Dudley^  neither  Joseph  nor  _the^  tenant  had 
gained  any  title  tq^the  land  in  controversy  by  possession^ 

For  these  reasons  the  judgment  of  the  circuit  court  must  be  j;e- 
_yersedj  and  the  cause  remanded,  with  directions  to  the  court  to  order 
a  venire  facias  de  novo.^®  /  '^/■^ 

FRENCH  V.  PEARCE.      ^-A.>^.^..  ^a.. 

(Supreme  Court  of  Errors  of  Connecticut,  1831.    8  Conn.  439,  21  Am.  Dec.  680.) 

This  was  an  action  of  trespass  quare  clausurn  Jregit^;  tried  at  Litch- 
field, February  term,  1831,  before  Williams,  J. 

The  plaintiff  and  defendant  were  adjoining  proprietors  of  land;  and 
the  land  in  controversy  was  the  border  between  them,  which  was 
wood-land,  unfenced.  Both  parties  claimed  under  William  French, 
the  father  of  the  plaintiff'  and  of  the  defendant's  wife.  The  plaintiff's 
title  was  admitted,  unless  the  land  was  conveyed  to  the  defendant's 
wife,  by  a  deed  dated  the  11th  of  May,  1809;  in  which  the  line  on  the 
side  adjoining  the  plaintiff  was  particularly  described.  A  part  of  the 
description  was  "from  a  butternut  tree  a  straight  line  to  Piatt's  corner 
— said  piece  being  the  same  land  v/hich  the  grantor  bought  of  Rev.  Mr. 
Benedict."  The  defendant  contended,  that  as  the  deed  to  his  wife  re- 
ferred to  the  land  purchased  of  Mr.  Benedict,  he  might  shew  where 
were  the  bounds  of  that  lot ;  and  claimed,  that  by  those  bounds,  there 
was  not  a  straight  line  from  the  butternut  tree  to  Piatt's  corner.  This 
was  accompanied  with  evidence,  by  which  he  claimed  to  have  shewn, 

18  See  Ewing  v.  Burnet,  11  Pet.  41,  9  L.  Ed.  624  (1837). 

The  possession  npr]  occupancy  of  vacant  land  by  a  mere  squatter  is  not 
adverse,  so  as  to  ripen  into  a  title  by  adverse  possession.     See  Jll«lJ(ii'feou   v" 
Schamikow,  IbO  i'ed.  bU,  SO  U.  (J.  A.  3*3,  15  L.  K.  A    (N.  S.)  1178  (1907) 
Mattson  v.  Warner,  115  Minn.  520,  132  N.  W.  1127  (1911). 

Whether  the  possession  \yas  under  a  cTnim  of  tii-lp,  nr  not,  is  a  question  of 
fact,  to  be  baSdled  as  such  on  the  Trial,  and  conclusions  thereon  are  ordi 
narily  not  disturbed  by  reviewing  courts.    Mattson  v.  Warner,  supra. 

There  is  no  reouirement  that  th<^  oinin^:  nP  fiflp  be  bona  flde.  Rupley  v 
Eraser  (Minn.)  156  N.  W.  3^0  (1916);  Kamapo  Mt'g.  Co.  v.  Mapes,  216  N.  Y 
362,  110  N.  E.  772  (1915). 


J52  ORIGINAL  TITLES  (Part  1 

that  he  had  occupied  and  possessed  the  land  in  question  for  more  than 
fifteen  years,  although  not  included  in  the  straight  line  mentioned  in 
the  deed.  The  plaintiff  denied  the  occupation  of  the  defendant;  and 
denied  also  any  difference  in  bounds  in  consequence  of  the  reference 
to  Mr.  Benedict's  deed,  and  any  adverse  possession  by  tlie  defendant. 

The  judge  charged  the  jury,  tliat  in  considering  where  were  the 
boundaries  of  this  lot  of  the  defendant's  wife,  if  the  description  in  the 
deed  was  doubtful,  they  might  take  into  consideration  the  possession 
or  occupation  of  the  defendant,  for  the  purpose  of  determining  those 
bounds.  But  if  they  should  find,  that  the  defendant  had  possessed  the 
land  in  question,  for  more  than  fifteen  years,  claiming  and  intending 
only  to  occupy  to  the  true  line,  as  described  in  his  deed  and  no  fur- 
ther, then  his  possession  must  be  referred  to  his  deed,  and  it  would 
not  be  adverse  to  the  plaintiff;  and  the  jury,  notwithstanding  such 
possession,  must  look  to  the  deed,  to  determine  the  line  of  division. 

The  jury  returned  a  verdict  for  tlie  plaintiff;    and  the  defendant 
moved  for  a  new  trial  for  a  misdirection. 
Q  HosMER,  C.  J.    Whether  the  line  of  occupancy  was  the  dividing  line_ 

between  them,  was  the  point  of  controversy  between  the  parties.  The 
jury  were  charged,  so  far  as  relates  to  the  deed,  that  if  the  line  de- 
scribed in  it  was  doubtful,  they  might  take  into  consideration  the  pos- 
session and  occupation  of  the  defendant,  for  the  purpose  of  deter- 
mining it.  This  opinion  seems  not  to  be  questioned  ;  nor  is  it  question- 
able. An  occupation  of  land  by  the  defendant  as  his  own,  under  the 
plaintiff's  eye,  to  what  he  supposed  to  be  the  dividing  line  between 
him  and  the  plaintiff,  and  which,  for  many  years,  the  plaintiff'  permit- 
ted without  a  question,  from  the  mutual  assent  of  the  parties  is  strong 
presumptive  evidence  of  the  true  place  of  the  line.  1  Phill.  Ev. 
"420-422. 

On  the  point  of  title  by  fifteen  years  possession,  as  the  only  objec- 
tion made  at  the  trial,  was,  that  the  possession  of  the  defendant  was 
not  adverse,  it  must  be  assumed,  that  none  other  existed.  Of  conse- 
quence, the  controversy  is  confined  to  that  single  point. 

By  adverse  poss^ssiori_is  meant  a  possession  hostile  to  the  title  of 
another ;  or,  In  other  words,  a  disseisin  of  the  premises ;  and  by  dis- 
seisin is  understood  an  unwarrantable  entry,  putting  the  true  owner 
out  of  his  seisin.    Co.  Litt.  153,  b.  181. 

The  enqujry,  then,  is  precisely  tliis ;  what  must  be  the  character  of 
the  act,  which  constitutes  an  adverse  possession? 

This  question  was  directly  answered,  in  Bryan  v.  Atwater,  5  Day, 
181,  5  Am.  Dec.  136,  and  by  this  Court.  A  clear  and  unquestionable 
rule  was  intended  to  be  given.  The  court  commenced  the  expression 
of  their  opinion,  by  saying:  "It  will  be  necessary  to  ascertain  pre- 
cisely the  meaning  of  the  terms,  'adverse  holding'  or  'adverse  posses- 
sion.' "  The  first  principle  asserted  in  that  case  is,  that  to  render  a 
possession  adverse,  it  is  not  necessary  that  it  should  be  accompanied 
with  a  claim  of  title  and  with  the  denial  of  tlie  opposing  title.    The  case 


Ch.  1)  POSSESSORY  TITLES  53 

next  affirms  that  possession  is  never  adverse,  if  it  be  under  the  legal 
proprietor  and  derived  from  him.    After  these  preliminaries,  it  is  en-, 
quired:    "But  more  particularly,  what,  in  point  of  law,  is  an  adyei'se.^ 
jossession  ?     It  is,"  say  the  court,  "a  possession,  not  under  the  legal 
proprietor,  but  entered  into  without  his   consent,   either,   directly   or 
indirectly  given.    It  is  a  possession,  by  which  he  is  disseised  and  ousted  > 
of  the  lands  so  possessed."    That  there  should  remain  no  doubt,  they  ■ 
next  enquire,  what  constitutes  a  disseisin?    After  shewing  negatively,  i 
that  it  is  not  requisite  to  enter  claiming  title,  or  denying  the  title  of 
the  legal  owner,  they  remark  affirmatively,  that  it  is  only  necessary 
for  a  person  to  enter  and  take  possession  of  land  as  his  own ;  to  take  | 
the  rents  and  profits  to  himself ;   and  to  manage  with  the  property  as  ', 
an  owner  manages  with  his  own  property;    that  is,  tlie  person  thus  • 
possessing  must  act  as  if  he  were  the  true  owner  and  accountable  to 
no  person  for  the  land  or  its  avails.    A  criterion  is  then  given  to  de- 
termine whether  a  possession  is  adverse.     "It  is  only  necessary  to 
find  out,"  say  the  court,  "whether  it  can  be  considered  as  the  con- 
structive possession  of  the  legal  proprietor."  ; 
I  have  been  thus  particular  in  analyzing  tliis  case,  in  which  the  rea--* 
sons  were  drawn  up,  by  a  very  able  and  eminent  jurist;  as  it  presents, 
in  the  plainest  language,  a  sure  and  most  intelligible  land-mark,  to  ascer- 
tain when  a  possession  is  adverse.    It  is  peculiarly  observable,  that  by 
the  reasons  given,  anxiously  laboured  as  they  were,  it  was  intended 
to  put  the  question  at  rest  for  the  future.    The  possession  alone,  and 
the  qualities  immediately  attached  to  it,  are  regarded.     No  intimation 
is  there  as  to  the  motive  of  the  possessor.    If  he  intends  a  wrongful 
disseisin,  his  actual  possession  for  fifteen  years,  gives  him  a  title;   or 
if  he  occupies  what  he  believes  to  be  his  own,  a  similar  possession  gives 
him  a  title.     Into  the  recesses  of  his  mind,  his  motives  or  purposes, 
his  guilt  or  innocence,  no  enquiry  is  made.    It  is  for  this  obvious  rea- 
sonjlthat  it  is  the  visible  and  adverse  possession,  with  an  intention 


to  possess,  that  constitutes  its  adverse  character,  and  not  the  remote 
views  or  belief  of  the  possessor. 

— It" is  not  necessary  that  I  should  proceed  further,  as  the  point  of 
decision,  in  the  case  before  us,  has  been  settled,  by  this  Court,  and 
with  great  precision.  At  the  same  time,  it  may  be  the  more  satisfac- 
tory to  shew,  that  the  determination  here  is  in  harmony  with  the  deci- 
sions of  other  courts. 

In  Westminster-Hall,  the  character  of  an  adverse  possession  is  well 
established.  The  possession  of  a  person  denying  the  title  of  the  owner, 
or  claiming  the  premises,  or  taking  the  whole  rents  and  profits  with- 
out accounting,  is  held  sufficient  evidence  of  actual  ouster.  Doe  d. 
Fisher  &  al.  v.  Prosser,  Cowp.  217;  Doe  d.  Hellings  &  ux.  v.  Bird, 
11  East,  49;  Stocker  v.  Berny,  1  Ld.  Raym.  741;  s.  c.  by  the  name 
of  Stokes  V.  Berry,  2  Salk.  421.  The  extent  of  the  doctrine  is  defined 
by  the  following  considerations.  The  possession  of  a  tenant  in  com- 
mon is  held  not  to  be  adverse,  without  actual  disseisin  or  its  equiva- 


54  ORIGINAL  TITLES  (Part  1 

lent,  as  he  is  presumed  to  possess  for  his  fellow  commoner ;  but  the 
possession  of  an  individual  entering  not  under  another,  is  adverse,  by 
a  perception  of  the  profits  only  to  his  own  use. 

In  the  state  of  New  York,  the  entering  on  land  under  pretence  of 
title,  or  under  a  claim  hostile  to  the  title  of  the  true  owner,  constitutes 
an  adverse  possession.  Brandt  d.  Walton  v.  Ogden,  1  Johns.  (N.  Y.) 
156;  Jackson  d.  Griswold  v.  Bard,  4  Johns.  (N.  Y.)  230,  4  Am.  Dec. 
267;  Jackson  d.  Bonnell  &  al.  v.  Sharp,  9  Johns.  (N.  Y.)  163,  6  Am. 
Etec.  267. 

To  the  same  effect  is  the  law  of  Massachusetts.  "To  constitute  an 
actual  ouster,"  said  Parsons,  Ch.  J.,  "of  him  who  was  seised,  the  dis- 
seisor must  have  the  actual  exclusive  occupation  of  the  land,  claiming 
i:o  hold  it  against  him  who  was  seised,  or  he  must  actually  turn  him 
out  of  possession."  Kennebeck  Purchase  v.  Springer,  4  Mass.  416, 
418,  3  Am.  Dec.  227.  Boston  Mill  Corporation  v.  Bulfinch,  6  Mass. 
129,  4  Am.  Dec.  120.  It  is  obvious,  that  a  person  who  takes  posses- 
sion, does  not  the  less  claim  to  hold  it  against  him  who  before  was 
seised,  because  he  conscientiously  believes,  that  he  has  right  to  possess. 

The  law  of  Maine,  so  far  as  it  is  expressed  in  the  case  of  Kenne- 
uec  Purchase  v.  Laboree  &  al,  2  Greenl.  (Me.)  275,  11  Am.  Dec.  79, 
1^  in  perfect  harmony  with  that  of  the  states  already  mentioned.  "The 
doctrine  on  this^ subject,"  said  Mellen,  Ch.  J.,  "seems  to  be  plain  jind 
well-settled.  A  possession  must  be  adverse  to  the  true  owner,  in  or- 
der to  constitute  a  disseisin.  The  possessor  must  claim  to  hold  and 
improve  the  land  for  his  own  use,  and  exclusive  of  others."  He  next 
states,  that  in  a  count  on  the  demandant's  seisin,  it  was  never  incum- 
bent on  the  tenant  to  prove  more  than  his  continued  possession  and 
occupancy  for  thirt}'  years  next  before  the  commencement  of  the  ac- 
tion, using  and  improving  the  premises  after  the  manner  of  the 
owner  of  the  fee ;  and  he  then  subjoins,  that  such  possession,  unless 
explained,  affords  satisfactory  evidence  to  the  jury,  that  such  tenant 
claimed  to  hold  the  land  as  his  own. 

In  the  case  of  Brown  v.  Gay,  3  Greenl.  (Me.)  126,  the  question  was, 
whether  the  tenant  was  in  possession  of  certain  land  by  disseisin.  He 
owned  a  lot  denominated  No.  3,  and  was  in  possession  of  lot  No.  4, 
claiming  that  it  was  part  of  the  former  lot.  He  was,  therefore,  in 
possession  through  mistake.  This  principle  was  advanced,  by  the  court, 
to  wit:  "If  the  owner  of  a  parcel  of  land,  through  inadvertency  or 
ignorance  of  the  dividing  line,  includes  a  part  of  an  adjoining  tract 
within  his  enclosure,  this  does  not  operate  a  disseisin,  so  as  to  prevent 
the  true  owner  from  conveying  or  passing  the  same  by  deed." 

If  the  learned  court  meant  to  lay  down  the  position,  that  although 
the  possession  was  adverse  and  a  disseisin,  yet  that  it  was  of  such  a 
character  as  not  to  prevent  the  owner  from  transferring  the  land  by 
deed,  the  case  has  no  bearing  on  the  one  before  us.  But  if  it  was  in- 
tended to  declare,  that  there  was  no  disseisin  at  all,  by  reason  of  the 
before  mentioned  mistake,  I  cannot  accede  to  the  proposition.    There 


Ch.  1)  POSSESSORY   TITLES  55 

was  a  possession,  it  was  not  under  the  true  owner,  but  it  was  under  a 
claim  of  right;  and  the  rents  and  profits  (if  any)  were  received  and 
appropriated  to  the  possessor's  use,,  without  any  supposed  or  assumed 
accountabiHty.  This  is  a  disseisin,  by  all  the  cases  on  the  subject,  with 
every  mark  or  indicium  of  one  upon  its  face.  If  the  possession  were 
incidental  to  the  taking  of  something  off  the  property,  it  would  be  a 
trespass  only.  But  when  the  possession  [s  a  permanent  object,  under 
a  claim  of  right,  however  mistaken,  what  can  be  a  disseisin,  if  this  is 
not?  That  the  possessor  meant  no  wrong,  might  be  very  important, 
if  he  were  prosecuted  for  a  crime ;  for  nemo  fit  reus,  nisi  mens  sit 
rea.  But  the  motive,  which  induced  the  taking  possession,  is  remotely 
distant  from  the  possession  in  fact  under  a  claim  of  right,  and  in  no 
respect  tends  to  qualify  or  give  character  to  the  act.  It  was  adverse 
possession  and  disseisin  (innocently  happening)  with  the  full  intention 
of  the  mind  to  possess  exclusively ;  and  by  necessary  consequence,  a 
seclusion  of  the  owner  from  the  seisin  of  his  property. 

I  agree  with  the  learned  court,  that  the  intention  of  the  possessor 
to  claim  adversely,  is  an  essential  ingredient.  But  the  person  who  en- 
_ters  on  land  believing  and  claiming  it  to  be  hls^wn,  dqes^  tlius  enter^ 
and  possess.  The  very  nature  of  the  act  is  an  assertion  of  his  own 
title,  and  the  denial  of  the  title  of  all  others.  ^t_"iatters  not,  that  the 
possessor  was  mistaken,  and  had  he  been  better  informed,  would  not 
have  entered  on  the  land..  This /bears  on  another  subject — the  moral 
nature  of  the  action ;  but  it  does  not  point  to  the  enquiry  of  adverse 
possession.  Of  whatconse^uence  is  it  to  the  person  disseised,  that 
the  disseisor  is  an  honest  man?  His  property  is  held,  by  another, 
under  a  claim  of  right;  and  he  is  subjected  to  the  same  privation,  as 
if  the  entry  were  made  with  full  knowledge  of  its  being  unjustifiable. 

In  the  case  of  Ross  v.  Gould,  5  Greenl.  (Me.)  204,  it  is  said,  "a  dis- 
seisin cannot  be  committed  by  mistake,  because  the  intention  of  the 
possessor  to  claim  adversely,  is  an  essential  ingredient  in  disseisin." 
.1  do  not  admit  the  principle.  It  is  as  certain  that  a  disseisin  may  be 
committed  by  rnistake,  as  that  a  man  may  by  mistake  take  possession 
of  land,  claiming  title  and  believing  it  to  be  his  own.  The  possession 
is  not  the  less  adverse,  because  the  person  possessed  intentionally, 
though  innocently.  But  in  the  moral  nature  of  the  act,  there  is  un- 
doubtedly a  difference,  when  the  possessor  knowingly  enters  by  wrong. 

I  have  been  the  more  particular  in  my  observations,  for  two  reasons. 
The  first  is,  that  the  evidence  of  adverse  possession,  which  is  of  very 
frequent  occurrence,  might  be  placed  on  grounds  clear  and  stable : 
The  next,  from  a  serious  apprehension  that  in  the  law  of  disseisin,  an 
important  change  is  inadvertently  attempted.  Adopt  the  rule,  that 
an  entry  and 'possession  under  a  claim  of  right,  if  through  mistake, 
does  not  constitute  an  adverse  possession,  and  a  new  principle  is  sub- 
stituted. The  enquiry  no  longer  is,  whether  visible  possession,  with 
the  intent  to  possess,  under  a  claim  of  right,  and  to  use  and  enjoy  as 
one's  own,  is  a  disseisin;    but  from  this  plain  and  easy  standard  of 


56  ORIGINAL  TITLES  (Part  1 

proof  we  are  to  depart,  and  invisible  motives  of  the  mind  are  to  be 
explored ;  and  the  enquiry  is  to  be  had  whether  the  possessor  of  land 
acted  in  conformity  with  his  best  knowledge  and  belief. 

Inthe  case  before  us,  the  plaintiff  adduced  evidence  to  show,  that 
he  entered  on  the  land  in  question,  and  possessed  it  more  than  fifteen 
years,  uninterruptedly  and  exclusively,  under  a  claim  and  belief  of 
right,  and  appropriating  to  his  own  use,  without  account,  all  the  rents 
and  profits.  This  was^^adyerse  possession  and  disseisin,  and  gave  him, 
title  under  the  law  of  the  state. 

Upon  this  principle,  the  charge  was  incorrect,  and  a  new  trial  is  ad- 
vised. 

ihe  other  judges  were  of  the  same  opinion,  except  Peteirs,  J.,  who 
was  absent. 

New  trial  to  be  granted.^' 

PREBLE  V.  MAINE  CENT.  R.  CO. 

(Supreme  Judicial  Court  of  Maine,  1893.    85  Me.  260,  27  Atl.  149,  21  L.  R.  A. 
829,  35  Am.  St.  Rep.  366.) 

This  was  a  real  action  brought  to  deterrriine_ the_dividing  Hne^  be- 
tween  adjoining  .owner s.. 

The  case  is  stated  in  the  opinion. 

A  principal  issue  between  tlie  parties  was  that  of  adverse  occupatjon, 
the  plaintiff  claiming  that  thereby  he  had  acquired  a  title  to  the  dis- 
puted premises.  The  testimony  bearing  upon  this  issue  and  coming 
from  the  plaintiff's  cross-examination,  is  as  follows : 

"O.  Previous  to  your  deed  to  the  railroad  of  the  two  rod  strip  be- 
tween you  and  them,  was  there  anything  to  mark  the  western  bound- 
ary of  their  location?  A.  Yes,  there  was  a  fence  on  their  western 
boundary.  Then  they  took  two  rods  more  and  moved  the  fence.  I 
deeded  it  to  them. 

19  A.  conveyed  fifty  acres  of  his  land  to  B.  In  building  a  Jiue_fen£e  be- 
tween the  two  properties  A.,  by  mistake,  inclosed  seventeen  acres  of  B.'s 
land,  and  occnpipd  samp  for  thp  nprjori  of  the  f^t'^^"^^'  "f  limitatlOB^."  In 
ejectment  by  B.  against  A.  to  recover  possession  of  the  seventeen  acres,  A. 
claimed  bv  advey;-ip  nnsst^ssinn.  B.  offered  to  prove  that  after  the  fence 
was  built  A.  said  that  "he  thought  the  fence  was  on  the  con-ect  line,  but 
if  it  left  B.  with  less  than  fifty  acres,  the  fence  would  have  to  be  moved." 
Was  the  evidence  offered  material?  See  King  v.  Brigham,  23  Or.  2G2,  31  Pac. 
601,  18  L.  H.  A.  361  (1892);  Schaubuch  v.  Dillemuth,  108  Va.  86,  60  S.  E. 
745,  15  Ann.  Cas.  825  (1908);  Searles  v.  De  Ladson,  81  Conn.  133,  70  Atl. 
589  (1908). 

An  ignorant  woman,  a  devisee  of  certain  lands,  inclosed  'more  than  she 
was  entitled  to,  and  occupied  same  for  more  than  the  period  of  the  statute  of 
limitations.  In  ejectment  against  her  by  the  paper  title  owner,  she  set  up 
the  statute.  Qn  examination  during  the  trial  g^i<^  g?^iV^  si^^  "bad  never  want- 
ed more  than  tbe  will  gav^  Her,  Put  sne  knew  the  will  gave  her  what"she 
luid  Inclosed,"  Was  her  possession  adverse?  Johnson  v.  Thomas,  Zo  App.  L>. 
L'.  141  (1904).  ^  


Ch.  1)  POSSESSORY  TITLES  57 

"Q.  It  was  your  understanding  and  also  the  understanding  of  the 
railroad  company  that  the  fence  was  moved  back  to  correspond  with 
the  new  line?    A.  Yes,  sir. 

"Q.  Your  occupation  ever  since  has  been  based  upon  that  under- 
standing and  supposition,  has  it  not?  A.  I  always  supposed  that  was 
the  line. 

"Q.  When  you  made  your  deed  to  the  railroad  company  of  the  two- 
rod  strip,  and  then  occupied  afterwards  up  to  this  fence,  you  did 
not  intend  thereby  to  encroach  on  the  land  which  you  had  just  deeded 
to  the  railroad?  A,  I  supposed  I  was  using  my  own  land.  I  moved 
the  fence  in  at  one  time  two  feet. 

"Q.  D'own  to  the  time  when  you  moved  it  in  yourself,  the  fence 
was  kept  as  it  was  put  up  shortly  after  the  deed  of  the  two-rod  strip? 
A.    They  told  me  they  had  taken  two  rods. 

"Q.  How  long  after  you  delivered  to  the  railroad  company  your 
deed  of  the  two-rod  strip  was  the  fence  moved  back  to  correspond 
to  the  new  line?  A.  The  fence  was  moved  back  before  I  gave  the 
deed  ;  it  was  witliin  that  year.  I  was  away  at  sea ;  when  I  came  home 
they  told  me  they  had  taken  it. 

"O.  From  that  time  since  you  have  regarded  the  fence  line  as  the 
true  line?    A.  I  have. 

"O.  And  occupied  up  to  it  on  that  account  and  on  that  ground?  A. 
Occupied  it  on  account  I  thought  it  was  my  own  land." 

Whitehouse,  J.  In  this  writ  of  entry  the  plaintiffs  seek  to  recover 
a  small  piece  of  land,  triangular  in  shape,  now  covered  by  a  portion 
of  the  defendant's  freight  platform  at  the  Richmond  station.  The  case 
is  presented  on  report  and  discloses  no  material  controversy  respecting 
the  facts.  The  rights  of  the  parties  must,  therefore,  be  determined 
by  applying  the  established  principles  of  law  to  the  fair  and  reasona- 
ble inferences  drawn  from  the  facts  proved  or  admitted. 

The  original  location  of  the  defendant's  railroad  in  1848  was  made 
four  rods  in  width  at  the  point  in  question,  its  westerly  boundary  be- 
ing the  easterly  line  of  the  premises  then  owned  by  the  plaintiff's  fa- 
ther. But  in  1852  the  company  purchased  of  the  plaintiffs,  who  had 
in  the  meantime  acquired  title  to  the  property,  an  additional  strip  two 
rods  in  width,  extending  across  their  lot,  and  adjoining  the  original 
location  on  the  westerly  side.  At  the  same  time  the  fence  which  had 
been  erected  on  the  supposed  boundary  line  in  1848,  was  moved  west- 
erly by  the  defendant's  servants  for  the  purpose  of  enclosing  the  two 
rods  then  purchased ;  but  the  plaintiff,  Israel  Preble,  testifies  that  in 
re-building  the  fence  in  "1864  or  1866"  he  moved  it  two  feet  further 
on  to  his  own  land.  Prior  to  1889  the  defendants  had  used  only  a 
part  of  this  additional  strip,  and  hence  there  had  been  no  occasion  for 
an  accurate  survey  of  the  land.  But  when  at  the  last  named  date,  it 
became  necessary  to  enlarge  the  freight  platform,  measures  were  taken 
to  have  the  boundary  line  between  the  parties  definitely  ascertained 
and  fixed.    It  was  then  discovered  from  the  record  of  the  orisfinal  lo- 


,/ 


58  ORIGINAL  TITLES  (Part  1 

cation  that  the  "central  or  directing  line"  of  the  railroad  was  not  in 
the  centre  of  the  four  rods  of  land  taken  for  the  construction  of  the 
road,  but  was  twenty-eight  feet  from  the  easterly  line  and  thirty- 
eight  feet  from  the  westerly  line  of  the  location.  It  accordingly  ap- 
peared that  the  true  boundary  of  the  defendant's  land  on  the  west  was 
thirty-eight  feet  and  two  rods  or  seventy-one  feet  from  the  centre  of 
the  main  track  of  the  railroad.  By  this  measurement  the  boundary 
line  was  found  to  be  west  of  the  existing  fence  a  distance  of  two  feet 
and  eight-tenths  at  the  southerly  end  and  eight  feet  and  ten  inches 
at  the  northerly  end.  Whether  the  mistake  made  by  the  defendant's 
servants  respecting  the  distance  tlie  fence  should  have  been  moved  in 
1848,  arose  in  part  from  an  erroneous  assumption  that  the  central  line 
of  the  track  was  the  centre  of  the  location,  or  otherwise,  does  not  ap- 
pear, and  it  is  not  material  to  inquire.  There  is  not  only  no  evidence 
that  the  main  track  has  been  moved  at  this  point  since  tlie  original 
location  but  it  is  satisfactorily  shown  tliat  it  has  not  been  moved ;  and 
the  simple  process  of  drawing  a  line  seventy-one  feet  westerly  from 
the  centre  of  the  main  track  and  parallel  with  it  now  establishes  be- 
yond a  doubt  the  location  of  the  westerly  line  of  the  two-rod  strip. 
The  triangular  piece  in  controversy  is  thus  conclusively  shown  to  be 
wholly  on  the  east  side  of  the  true  line,  and  hence  a  part  of  the  land 
purchased  of  the  plaintiffs  in  1852. 

But  Israel  Preble,  the  surviving  plaintiff,  claims  that  he  cannot  at 
this  date  satisfactorily  locate  his  easterly  line  by  measurement;  and 
says  that  he  has  continually  occupied  the  land  to  the  fence  as  it  existed 
in  1889  upon  the  understanding  and  belief  that  it  marked  the  true  line, 
and  he  now  claims  title  to  the  disputed  piece  by  adverse  possession. 
And  the  question  is,  can  this  claim  on  the  part  of  the  plaintiff  be  sus- 
tained on  the  facts  here  presented?  Clearly  not,  unless  the  rule  es- 
tablished by  an  unbroken  line  of  the  decisions  of  this  court  covering  a, 
period  of  nearly  seventy  years,  is  now  to  be  overturned.  That  rule  isl 
that  one  who  by  mistake  occupies  for  twenty  years,  or  mbre,  land  not' 
covered  by  his  deed  with  no  intention  to  claim  title  beyond  his  actual' 
boundary  wherever  that  may  be,  does  not  thereby  acquire  title  by  ad- 
verse possession  to  land  beyond  the  true  line.  Brown  v.  Gay,  3  Me. 
(Greenl.)  126;  Ross  v.  Gould,  5  Me.  (Greenl.)  204;  Lincoln  v.  Edge- 
comb,  31  Me.  345;  Worcester  v.  Lord,  56  Me.  266,  96  Am.  Dec.  456; 
Dow  v.  McKenney,  64  Me.  138. 

We  are  aware  that  the  soundness  of  this  doctrine  has  been  question- 
ed in  other  jurisdictions.  It  has  been  said  that  the  possession  is  not  the 
less  adverse  because  the  person  possessed  intentionally  though  innocent- 
ly; and  the  further  objection  has  been  made  that  it  introduces  a  new 
principle  by  means  of  which  the  stable  evidence  of  visible  possession 
under  a  claim  of  right,  is  complicated  with  an  inquiry  into  the  invisible 
motives  and  intentions  of  the  occupant.  French  v.  Pearce,  8  Conn. 
439,  21  Am.  Dec.  680;    Wood  on  Limitati6ns,  §  263,  and  authorities 


Ch.  1)  POSSESSORY  TITLES  59 

cited.  It  is  manifest,  however,  that  those  holding  these  views  have  not 
critically  distinguished  the  decisions  of  our  court  upon  the  subject,  and 
hence  have  failed  to  apprehend  their  true  import  and  exact  limitations. 
A  frequent  recurrence  to  elementary  truths  in  any  science  jsthe 
greatest  safeguard  against  error,  and  in  the  ultimate  analysis  of  the 
doctrine  of  adverse  possession  the  distinctive  element  which  supports 
the  rule  above  stated  at  once  becomes  apparent.  Indeed  it  is  aptly 
suggested  in  the  familiar  test  imposed  by  Bracton:  "Ouaerendum  est 
a  judice  quo  animo  hoc  fecerit."  Co.  Littl.  153  b;  8  Mod.  Rep.  55. 
The  inquiry  must  be  quo  animo  is  the  possession  taken  and  held. 

There  is  every  presumption  that  the  occupancy  is  in  subordination  to 
the  true  title,  and  if  the  possession  is  claimed  to  be  adverse  the  act  of 
the  wrong-doer  must  be  strictly  construed,  and  the  character  of  the 
possession  clearly  shown.  Roberts  v.  Richards,  84  Me.  1,  24  Atl.  425, 
and  authorities  cited.  "The  intention  of  the  possessor  to  claim  ad- 
versely," says  Mellen,  C.  J.,  in  Ross  v.  Gould,  supra,  "is  an'  essential 
ingredient  in  disseizin."  And  in  Worcester  v.  Lord,  supra,  the  court 
says :  "To  make  a  disseizin  in  fact  there  must  be  an  intention  on  the 
part  of  the  party  assuming  possession  to  assert  title  in  himself."  In- 
deed the  authorities  all  agree  that  this  intention  of  the  occupant  to 
claim  the  ownership  of  land  not  embraced  in  his  title,  is  a  necessary 
element  of  adverse  possession.  And  in  case  of  occupancy  by  mistake 
beyond  a  line  capable  of  being  ascertained,  this  intention  to  claim  title 
to  the  extent  of  the  occupancy  must  appear  to  be  absolute  and  not  con- 
ditional ;  otherwise  the  possession  will  not  be  deemed  adverse  to  the 
true  owner.  It  must  be  an  intention  to  claim  title  to  all  land  within  a 
certain  boundary  on  the  face  of  the  earth,  whether  it  shall  eventually 
be  found  to  be  the  correct  one  or  not.  If  for  instance  one  in  ignorance 
of  his  actual  boundaries  takes  and  holds  possession  by  mistake  up  to  a 
certain  fence  beyond  his  limits,  upon  the  claim  and  in  the  belief  that  it 
is  the  true  line,  with  the  intention  to  claim  title,  and  thus  if  necessary, 
to  acquire  "title  by  possession"  up  to  that  fence,  such  possession  having 
the  requisite  duration  and  continuity,  will  ripen  into  title.  Hitchings  v. 
Morrison,  72  Me.  331,  is  a  pertinent  illustration  of  this  principle.  See, 
also^  Abbott  v.  Abbott,  51  Me.  575;  Ricker  v.  Hibbard,  7Z  Me.  105. 
-"^i  on  the  other  hand  a  party  through  ignorance,  inadvertence  or 
mistake,  occupies  up  to  a  given  fence  beyond  his  actual  boundary,  be- 
:  cause  he  believes  it  to  be  the  true  line,  butjias  no  intention  to  claim 
!  title  to  that  extent  if  it  should  be  ascertained  that  the  fence  was  on  his 
neighbor's  land,  ah  indispensable  element  of  adverse  possession  is 
wanting.  In  such  a  case  the  intent  to  claim  title  exists  only  upon  the 
condition  that  the  fence  is  on  the  true  line.  The  intention  is  not  abso- 
lute^ut  provisional,  and  the  possession  is  not  adverse.  Dow  v.  Mc- 
Kenney,  64  Me.  138,  is  an  exceTTeht  illustration  of  this  rule.  In  that 
case  a  fence  had  been  maintained  on  a  wrong  divisional  line  by  mistake, 
and  it  was  found  by  the  court  as  a  matter  of  fact  that  "none  of  the 


ih 


^ 


60  OEIGINAL  TITLES  (Part  1 

parties  had  any  idea  of  maintaining  any  line  but  the  true  divisional 
line  and  that  they  occupied  according  to  the  fence  only  because  they 
supposed  it  was  on  the  true  divisional  line  between  them."  Upon  this 
finding  it  was  held  as  a  matter  of  law  that  such  possession  was  not  ad- 
verse to  the  right  of  the  true  owner.  The  unconditional  intent  to 
claim  title  to  the  extent  of  the  occupancy  was  wanting.  See,  also, 
Worcester  v.  Lord,  56  Me.  266,  96  Am.  Dec.  456. 

Thus  it  is  perceived  that  possession  by  mistake  as  above  described 
may  or  may  not  work  a  disseizin.  Itjsjnot  merely  the  existence,  o.f_a_ 
mistake,  but  the  presence  or_absence  of  the  requisite  intention  to  claim 
title  that  fixes  the  character  of  the  entry  and  determines  the  question 
of  disseizin,  ^he  two  rules  are  expressly  recognized  and  carefully  dis- 
tinguished in  our  recent  decisions.  The  distinction  between  them  is 
neither  subtle,  recondite  or  refined,  but  simple,  practical  and  substan- 
tial. It  involves  sources  of  evidence  and  means  of  proof  no  more 
difficult  or  complex  than  many  other  inquiries  of  a  similar  character 
constantly  arising  in  our  courts. 

The  conclusions  of  fact  which  are  fairly  warranted  by  the  evidence 
leave  no  room  for  doubt  that  the  case  at  bar  falls  within  the  principle 
last  stated.  It  has  already  been  seen  that,  prior  to  1889,  both  parties 
were  ignorant  of  the  fact  that  the  fence  erected  by  the  plaintiff  in 
"1864  or  1866"  was  not  on  the  true  line.  The  plaintiff,  Israel  Preble, 
himself  testifies  that  after  he  moved  the  fence  he  had  always  regarded 
it  as  the  true  line ;  that  he  had  occupied  the  land  up  to  the  fence  upon 
the  supposition  and  belief  that  it  was  the  true  line  and  that  he  had  so 
occupied  it  because  he  thought  it  was  his  own  land.  This  testimony, 
viewed  in  the  light  of  the  circumstances  and  situation  of  the  parties, 
emphatically  negatives  the  idea  that  during  this  time  the  plaintiff  had 
any  intention  to  claim  title  to  land  which  did  not  belong  to  him.  We 
are  warranted  in  believing  that  it  would  do  injustice  to  the  plaintiff 
himself,  as  well  as  violence  to  all  the  probabilities  in  the  case,  to  as- 
sume that  immediately  after  the  plaintiff  had  conveyed  the  land  to  the 
defendant  for  a  satisfactory  consideration,  he  formed  the  intention 
of  depriving  the  company  of  a  portion  of  the  same  land  by  disseizin  in 
case  the  fence  should  not  prove  to  be  on  the  true  line. 

The  conclusion  is  irresistible  that  the  plaintiff  held  possession  of  the 
locus  by  mistake  in  ignorance  of  the  true  line,  with  an  intention  to 
claim  title  only  on  condition  that  the  fence  was  on  the  true  line.  His 
possession  was,  therefore,  not  adverse  to  the  true  owner,  and  cannot 
prevail  against  the  valid  record  title  of  the  defendant.  JLudgment  for 
the  defendant.-'' 

Peters,  C.  J.,  Walton,  Virgin  and  Haskell,  JJ.,  concurred.  Em- 
ery, T.,  did  not  concur.  ,  ,     , 

20  See  Richardson  v.  Watts,  94  Me.  476/487,  48  Atl.  ISO  (1901) ;  Doolittle 
V.  Bailey,  S.">  Ii)\va.  .^98,  52  N.  W.  337  (1892)  (but  see  Grube  v.  Wells,  3-1 
Iowa,  148  [1871]) ;   JNIiller  v.  Mills  County,  111  Iowa,  654,  82  N.  W.  1038  (190O)  ^ 


Ch.  1)  POSSESSORY  TITLES  61" 


BOND  V.  O'GARA. 

(Supreme  Judicial  Court  of  Massachusetts,  1900.    177  Mass.  139,  58  N.  E.  275, 

83  Am.  St.  Rep.  265.) 

Writ  of  entry,  to  recover  a  tract  of  land  situated  in  Leicester.  Plea, 
general  issue.  Trial  in  the  Superior  Court,  before  Gaskill,  J.,  who 
allowed  a  bill  of  exceptions,  in  substance  as  follows. 

The  demandant  claimed^tit^e  through  a  deed  to  him  on  the  premises, 
by  one  Lanphear,  dated  March  11,  1899.  Lanphear's  title  came  from 
a  deed  dated  January  5,  1899,  also  delivered  on.Jka.lan.d,  to  him,  by 
Kate  Hanlon  and  her  children,  being  the  children  and  heirs  of  her  de- 
ceased husband,  John  Hanlon.  The,  tenant  claimeii  tjtlp  thrnngh  a 
lease  fromjhe  heirs  of  one  Olney,  deceased,,  dated  December  9,  1898o 
The  paper  title  was  shown  to  be  in  the  heirs  of  Olney  by  a  series  of 
conveyances  beginning  with  the  deed  of  one  Burr  to  Buchanan,  June 
4,  1863.  The  demandant  claimed  that  John  Hanlon  or  his  widow,  Kate 
Hanlon,  or  his  heirs  who  signed  the  deed  to  Lanphear,  had  acquired  a 
title  to  the  premises  by  possession^  for  twenty  years. 

There  was  evidence  tending  to  show  that  John  Hanlon  entered  upon 
the  premises  about  the  year  1864,  cut  the  wood  and  timber,  and  there- 
after occupied  the  same  for  a  garden  and  for  pasturing  his  cow  and 
for  other  purposes,  the  evidence  tending  to  show  that  this  occupation 
was  exclusive  and  continuous.  There  was  evidence  tending  to  show 
that  John  Hanlon  entered  upon  the  premises  either  in  pursuance  of  a 
verbal  gift  of  the  land  to  him  by  Samuel  L.  Hodges,  or  by  a  permis- 
sion to  occupy  the  same  granted  to  him  by  Hodges,  who  became 
owner  of  the  premises  by  a  deed  from  Patrick  Hanover,  dated  October 
30,  1865,  and  Hodges  conveyed  the  same  to  one  Gilbert  and  others  on 
October  19,  1866.  John  Hanlon  died  in  1873,  and  thereupon  his  wid- 
ow continued  to  occupy  the  premises  in  the  way  in  which  her  husband 
had  done,  and  in  the  way  in  which  she  occupied  the  adjoining  farm, 
the  title  to  which  was  in  John  Hanlon  at  the  time  of  his  death.  Some 
of  her  children,  the  heirs  of  John  Hanlon,  lived  with  her  and  worked 
on  the  premises  in  question.  The  evidence  tended  to  show  that  this 
occupation  of  John  Hanlon  during  his  life  and  that  of  Kate  Hanlon 
was  open  and  continuous  and  exclusive,  and  the  principal  question  in  r""^ 

controversy  was  whether  the  occupation  was  under  a  claim  of  right  or 
under  a  license  or  permission  from  Jjodges.-  Kate  Hanlon  testified, 
and  some  of  her  children  testified,  and  there  was  evidence  tending  to 
show  that  the  occupation  was  under  the  claim  that  Samuel  L.  Hodges 
had  given  the  land  to  John  Hanlon,  and  that  Kate  claimed  to  occupy 
it  as  her  own  because  Hodges  had  given  it  to  her  husband. 

Helmick  v.  Railway  Co.  (Iowa)  156  N.  W.  736  (1916) ;  Edwards  v.  Fleming,  83 
Kan.  653,  112  Pac.  836,  33  L.  R.  A.  (N.  S.)  923  (1911);  Skansi  v.  Novak,  84 
Wash.  39,  146  Pac.  160  (1915). 


62  ORIGINAL  TITLES  (Part  1 

This  evidence  was  controverted  by  the  tenant,  who  put  in  evidence 
that  said  Kate  Hanlon  had  stated  that  Hodges  had  given  to  her  hus- 
band and  herself  the  right  to  occupy  the  premises  and  the  right  to  cut 
the  grass,  etc.  The  deeds  from  Burr  to  Buchanan,  from  Buchanan  to 
Hanover,  and  from  Hanover  to  Hodges,  reserved  a  right  to  the  Leices- 
ter Reservoir  Company,  whose  pond  bordered  on  the  premises,  to  take 
material  for  its  dam  from  the  premises ;  and  there  was  evidence  that 
an  employee  of  the  Leicester  Reservoir  Company  had  crossed  the 
premises  and  had  torn  down  a  fence  witliin  twenty  years,  which  had 
been  put  up  by  Kate  Hanlon,  and  tliat  tliereupon  Kate  Hanlon  had 
restored  the  fence.  After  the  employee  had  torn  it  down  the  second 
time  she  left  an  opening  where  he  could  go  through,  and  thereafter  the 
fence  was  left  undisturbed. 

There  was  no  evidence,  except  such  as  may  be  inferred  from  the 
evidence  herein  stated,  that  any  of  the  owners  of  the  paper  title  of  the 
land,  except  Hodges,  had  ever  given  any  license  or  permission,  or  had 
any  knowledge  of  any  license  or  permission  to  John  Hanlon  or  Kate 
Hanlon,  or  the  heirs  of  John  Hanlon,  to  occupy  the  premises. 

The  demandant  asked  the  judge  to  instruct  the  jury  as  follows:  L 
If  the  owner  of  the  land  verbally  gave  the  land  to  John  Hanlon,  and 
thereupon  Hanlon  entered  on  the  premises  and  occupied  them  continu- 
ously till  his  'death,  claiming  to  own  them,  and  was  not  interfered  with 
in  said  occupation,  and  immediately  upon  his  death  his  widow  con- 
tinued to  occupy  the  same  continuously  in  the  same  way,  and  the  whole 
period  of  such  continuous  occupation  amounted  to  twenty  years,  the 
jury  would  be  authorized  to  find  that  the  title  was  in  Mrs.  Hanlon,  or 
in  her  and  the  heirs  at  law  of  said  John  Hanlon,  and  that  the  title 
passed  to  the  demandant  by  virtue  of  deeds  which  were  annexed  as 
Exhibits  A  and  B.  2.  If  the  occupation  of  Mrs.  Hanlon  has  been  suffi- 
cient to  give  a  title,  under  the  rules  of  law  given  you,  but  for  some  li- 
cense or  permission  which  might  qualify  such  occupation,  then  the  said 
license  or  permission  must  appear  to  be  a  license  or  permission  granted 
by  the  owner  before  or  at  the  time  the  occupation  is  going  on,  or  in 
force  during  the  time  of  such  occupation.  3.  Any  license  or  permis- 
sion given  by  Hodges  during  his  ownership  is,  in  itself,  of  no  legal  im- 
portance, as  affecting  occupancy  by  Mrs.  Hanlon  subsequent  to  the 
date  when  he  parted  with  his  title,  and  it  could  have  no  farce  in  this 
case,  unless  there  is  evidence  that  the  grantees  of  Hodges,  while  own- 
ers, renewed  or  adopted,  or  in  some  way  intentionally  continued  or 
revived,  such  license  or  permission.  4.  If  the  occupation  of  Mrs.  Han- 
lon of  the  premises  in  question  for  twenty  years  was  such  that  the  real 
owner  of  the  premises  could  have  sued  her  for  trespass  for  such  occu- 
pation, then  said  occupation  was  adverse  within  the  meaning  of  the 
law.  5.  On  the  evidence  in  tlie  present  case  the  occupation  by  Mrs. 
Hanlon  of  the  premises  in  question,  cultivating  the  same,  cutting  the 
hay  and  grass  on  the  same,  and  pasturing  her  cow  thereon,  was  such 


Ch.  1)  POSSESSORY  TITLES  63 

occupation  as  would  support  an  action  of  trespass  on  the  part  of  the 
owner  of  the  estate,  in  tne  absence  of  any  Hcense  or  permission  given 
by  the  person  who  owned  the  premises  at  the  time  of  said  occupation. 

The  judge  refused  to  give_  the  instnictions  in  the  form  requested^ 
but  after  generalmstructions  as  to  adverse  possession _ins^truc_ted_the 
jury,  in  substance,  that  if  Hanlon's  occupancy  was  not  by  gift,-^  but 
by  permission  only,  he  did  not  acquire  any  right  against  the  owner  of 
the  land;  that  the  right  of  Hodges  to  continue  that  permission 
ceased,  as  matter  of  law,  with  the  deed  given  by  him  on  October 
19,  1866;  that  if  Hanlon,  wife  or  children,  continued  to  occupy  on 
the  belief  that  the  permission  continued,  no  right  could  be  acquired, 
but  that  if_  die  occupancy  was  on  the  belief  that  the  land  was  theirs, 
and  continued  twentj^jears  uninterruptedly,  being  adverse  and  open,  a 
title_would_be-ac<iuired.  He  further  instructed  them  that,  if  the  first 
occupation  by  the  father  was  adverse  and  the  children  continued  their 
occupation,  they  could  add  the  time  of  their  occupation,  if  they  claim- 
ed title,  to  that  of  their  father,  but,  if  not,  then,  if  the  mother's  belief 
was  that  Hodges  had  given  the  land  to  her  husband,  her  uninterrupted 
occupation  for  twenty  years,  if  adverse  and  open,  would  give  a  good 
title;  and  that  if  the  occupation  by  Mrs.  Hanlon  or  the  heirs  was  ex- 
clusive, except  as  to  tlie  right  reserved  to  the  Leicester  Reservoir  Com- 
pany, it  was  sufficient,  because  that  right  was  reserved  by  the  deed  and 
exercised  thereunder. 

The  demandant  excepted  to  the  refusal  to  give  the  instructions  pray- 
ed for,  and  to  the  actual  instructions  given  so  far  as  they  differed  from 
the  instructions  prayed  for. 

The  jiary  returned  a  verdict  for  the  tenant ;  and  the  demandant  al- 
leged ^x_cep±tQns. 

Holmes,  C.  J.  This  is  a  writ  of  entry.  The  demandant  claims  title 
under  £f  deed  from  the  widow  and  heirs  of  one  John  Hanlon,  setting  n       y^ 

up  a  title  in  them  by  the  running  of  the  statute  of  limitations.  There 
was  evidence  that  the  holding  of  John  Hanlon  and  his  widow  and  heirs 
had  been  under  a  claim  of  right  adverse  to  all  the  world.  There  was 
also  evidence  that  their  occupancy  had  been  under  a  license  from  one 
Hodges,  who  owned  the  land  after  October,  1865,  and  conveyed  it  in 
October,  1866.    The  question  raised  by  the  demandant's  bill  of  excep-  v^^, 

tions  is  whether  the  fact  that  the  license  was  ended  in  1866  by  the 
conveyance  of  Hodges  necessarily  made  the  occupation  by  the  Hanlons 
adverse,  if  they  supposed  the  license  still  to  be  in  operation  and  pur- 
ported to  occupy  under  it,  but  were  in  such  relations  to  the  land  that 
they  would  have  been  liable  to  an  action  of  trespass,  or,  better  to  test 
the  matter,  to  a  writ  of  entry  at  the  election  of  the  true  owner. 

The  answer  is  plain.  "If  a  man  enter  into  possession,  under  a  sup- 
position of  a  lawful  Hmited  right,  as  under  a  lease,  which  turns  out  to 

21  As  to  the  possession  of  a  donee  under  a  parol  gift  being  adverse  or  not, 
see  Jolins  v.  Johns,  24i  Pa.  48,  90  Atl.  535  (1914). 


^4  ORIGINAL  TITLES  (Part  1 

be  void,     *     *     *     if  he  be  a  disseisor  at  all,  it  is  only  at  the  election 
of  the  disseisee.     *     *     *     If  the  party  claim  only  a  limited  estate^ 
^  and  not_a  fee,  the  law  will  not,  contrary  to  his  intentions,  enlarge  it  to 

iifie^'  Ricard  V.  Williams,  7  Wheat.  59,  107,  108,  5  L.  Ed.  398 ;  Blun- 
den  V.  Baugh,  Cro.  Car.  302,  303 ;  Stearns,  Real  Actions,  (2d  Ed.) 
6,  17. 

It  is  true,  of  course,  that  a  man's  belief  may  be  immaterial  as  such. 
Probably,  although  the  courts  have  not  been  unanimous  upon  the 
point,  he  will  not  be  the  less  a  disseisor  or  be  prevented  from  acquiring 
a  title  by  lapse  of  time  because  his  occupation  of  a  strip  of  land  is  un- 
der the  belief  that  it  is  embraced  in  his  deed.  His  claim  is  not  limited 
_by^Jiis  belief .  Or,  to  put  it  in  another  way,  the  direction  of  the  claim 
to  an  object  identified  by  the  senses  as  the  thing  claimed  overrides  the 
inconsistent  attempt  to  direct  it  also  in  conformity  to  tlie  deed,  just  as 
a  similar  identification  when  a  pistol  shot  is  fired  or  a  conveyance  is 
made  overrides  the  inconsistent  belief  that  the  person  aimed  at  or  the 
grantee  is  some  one  else.  Hathaway  v.  Evans,  108  Mass.  267;  Beck- 
man  V.  Davidson,  162  Mass.  347,  350,  39  N.  E.  38.  See  Sedgwick  & 
Wait,  Trial  of  Title  to  Land  (2d  Ed.)  §  757.  So,  knowledge  that  a 
man's  title  is  bad  will  not  prevent  his  getting  a  good  one  in  twenty 
years.    Warren  v.  Bowdran,  156  Mass.  280,  282,  31  N.  E.  300. 

In  the  cases  supposed  the  mistaken  belief  does  not  interfere  with  the 
claim  of  a  fee.  But  when  the  belief  carries  with  it  a  corresponding 
liniitation  of  claim  tlie  statute  cannot  run,  because  there  is  no  disseisin 
except  the  fictitious  one  which  the  owner  may  be  entitled  to  force  upon_ 
the  occupant  for  the  sake  of  a  remedy.  Hoban  v.  Cable,  102  Mich. 
206,  213,  60  N.  W.  466.  Liability  to  a  writ  of  entry  and  disseisin  are 
not  convertible  terms  in  any  other  sense.  It  is  elementary  law  that  ad- 
verse possession  which  will  ripen  into  a  title  must  be  under  a  claim  of 
right.  (Harvey  v.  Tyler,  2  Wall.  328,  349,  17'L.  Ed.  871,)  or,^s  it  has" 
been  thought  more  accurate  to  say,  "with  an  intention  to  appropriate 
and  hold  the  same  as  owner,  and  to  the  exclusion,  rightfully  or  wrong- 
fully, of  every  one  else."  Sedgwick  &  Wait,  Trial  of  Title  to  Land 
(2d  Ed.)  §  576.  "As  Co.  Lit.  153b,  defines,  'a  disseisin  is  when  one 
enters,  intending  to  usurp  the  possession,  and  to  oust  another  of  his 
freehold;'  and  tlierefore  quserendum  est  a  judice,  quo  animo  hoc 
fecerit,  why  he  entered  and  intruded."  Blunden  v.  Baugh,  Cro.  Car. 
302,  303. 

The  other  matters  apparent  on  the  bill  of  exceptions  were  sufficient- 
ly dealt  with  by  the  judge.    Exceptions  overruled.^ ^ 

22  An  administrator  takes  possession  of  land  which  belonged  to  the  de- 
ceased under  the  supposed  authority  of  his  office  as  administrator,  though 
in  fact  he  had  no  such  right  to  possession.  Is  his  possession  adverse  to  the 
heirs,  who  were  entitled  to  possession?  Suppose  the  administrator  purports 
to  convey  the  land  to  his  wife,  but  continues  to  reside  upon  the  premises.  Is 
the  possession  adverse?  See  Ashford  v.  Ashford,  136  Ala.  631,  34  South.  10, 
^96  Am.  St.  Kep.  82  (1902). 


Jy^^    JLil/     (  ytC^^* — ^ 


Ch.  1)  POSSESSORY    TITLES  65 

FORTIER  V.  BALLANCE. 

(Supreme  Court  of  Illinois,  1848.    5  Gilman  41.) 

Forcible  detainer,  brought  by  the  appellee  against  the  appellants,  and 
originally  heard  before  a  justice  of  the  peace  of  Peoria  county,  when 
a  verdict  was  rendered  in  favor  of  the  plaintilf.  The  defendants  ap- 
pealed to  the  Circuit  Court,  and  the  cause  was  tried  at  the  October 
term,  1848,  before  the  Hon.  John  D.  Caton  and  a  jury,  when  a  verdict 
was  again  rendered  in  favor . ofjhe  original  plaintili". 

Trumbull,  J.  This  was  an  action  of  forcible  detainer,  brought  by 
Ballance  against  Fortier  &  Blumb.  Verdict  and  judgment  of  restitution 
in  favor  of  Ballance. 

The  evidence  shows  tliat  Ballance  leased  the  premises  for  the  term 
of  six  years  from  January  1,  1842,  at  the  rate  of  ten  dollars  to  be  paid 
every  four  months ;  that  he  reserved  by  the  lease  the  right  to  re-enter 
and  take  possession  of  the  premises  in  case  of  failure  to  pay  rent  as  it 
became  due ;  that  the  lessees  occupied  the  premises  for  some  time,  and 
afterwards  assigned  to  Blumb,  one  of  the  defendants  below,  who  en- 
tered into  possession  and  paid  rent  for  a  time  to  Ballance ;  that  about 
the  month  of  February,  1846,  Blumb  made  arrangements  for  the  oc- 
cupation of  the  premises  with  his  co-defendant  Fortier,  to  whom  he 
gave  possession,  and  whose  tenant  he  became,  disclaiming  to  have  any- 
thing more  to  do  with  Ballance,  and  alleging  that  Fortier  was  the  own- 
er of  the  land.  Ballance,  after  having  given  notice  and  made  demand 
in  writing  for  the  possession  of  the  premises,  on  the  second  day  of 
March,  1846,  and  before  the  expiration  of  the  six  years  for  which  the 
premises  had  been  let,  commenced  this  action. 

The  defendants  below  set  up  title  to  the  premises  in  Fortier. 

Two  principal  causes  have  been  assigned  for  the  reversal  of  the 
judgment.  First,  that  the  action  was  prematurely  brought,  the  time 
for  which  the  premises  were  let  not  having  expired.  It  is  clear  that 
Ballance  could  not  maintain  this  action  till  he  was  entitled  to  the  pos- 
session of  the  premises,  and  it  may  be  true,  as  insisted  by  the  appel- 
lants, that  he  was  not  entitled  to  the  possession  under  the  clause  in  the 
lease  authorizing  him  to  re-enter  in  case  of  failure  to  pay  rent,  for  the 
reason  that  there  is  no  evidence  to  show  either  that  a  demand  had 
been  made  for  the  rent  due,  or  any  of  those  acts  done  which  are  neces- 
sary in  the  first  instance  to  create  a  forfeiture  for  the  nonpayment  of 
rent;  but  be  this  as  it  may,  the  evidence  shows  that  Blumb  was  the 
tenant  of  Ballance,  that  Fortier  got  into  possession  by  arrangement 
with  Blumb,  who  thereupon  disclaimed  holding  under  Ballance,  and 
attorned  to  Fortier,  as  the  owner  of  the  premises.  Thejnoment_that_ 
Blumb  disavowed  the  title^of  Ballance  and  claimed  to  set  up  a  hostile 
titJeJn^P^rtier,  the  lease  became  forfeited,  and  Ballance's.right  of  entr-" 
Aig.Pbop. — 5 


56  ORIGINAL  TITLES  (Part  1 

complete.  Adams  on  Ej.  199.  "A  tenant  cannot  make  his  disclaimer 
ancTadverse  ciami  so  as  to  protect  hmiseit  dunng  tne  unexpired  term 
of  the  lease;  he  is  a  trespasser  on  hmi  who  has  the  legal  title.  The 
relation  of  landlord  and  tenant  is  dissolved^  and  each  party  is  to  stand, 
uponTiisTight.  If  the  tenant  disclaims  the  tenure,  claims  the  fee  ad- 
versely in  right  of  a  third  person  or  his  own,  or  attorns  to  another,  his 
possession  then  becomes  a  tortious  one,  by  the  forfeiture  of  his  right." 
VVillison  v.  Watkins,  3  Pet.  43,  7  L.  Ed.  596. 

Notwithstanding  Blumb  had  a  lease  for  a  term  not  then  expired,  the 
monient  he  disclaimed  to  hold  under  the  lease,  and  set  up  title  to  the 
premises,  his  possession  became  adverse  to  his  landlord,  and  it  would 
be  strange  jf.whjlejiis  title  was  maturing  by  adverse  possession,  he 
could  claim  the  protection  of  the  lease  to  prevent  his  being  turned  out. 
"A  tenant  disclaiming  his  landlord's  title,  is  not  entitled  to  notic£_lQ. 
^  quit ;   but  is  liable  instantly  to  a  warrant  of  forcible  detainer."     Bates 

'v.  Austin,  2  A.  K.  Marsh.  (Ky.)  270,  12  Am.  Dec.  395.  Blumb,  in 
setting  up  a  title  adverse  to  that  of  Ballance  by  his  own  act  terminated 
the  lease,  and  put  an  end  to  the  time  for  which  the  premises  had  been 
let,  just  as  effectually  as  if  the  full  term  of  six  years  had  expired. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs.    Judgment 

DOE  ex  dem.  PARKER  v.  GREGORY. 
(Court  of  King's  Bench,  1834.  2  Adol.  &  E.  14.) 
Ejectment  for  lands  in  Gloucestershire.  On  the  trial  before  Alder- 
son,  B.,  at  the  last  Gloucester  Summer  Assizes,  the  following  facts 
were  proved.  Thomas  Rogers,  being  seised  in  fee  of  the  lands  in 
question,  devised  them  to  his  son  Thomas  Rogers  for  life,  remainder 
to  William  Rogers  in  tail  male,  remainder  to  the  devisor's  right  heirs 
in  fee.  The  will  gave  a  power  to  the  tenant  for  life  to  settle  a  certain 
portion  of  the  lands  upon  his  wife  for  life,  by  way  of  jointure.  After 
the  death  of  the  devisor,  the  son  Thomas  Rogers,  being  then  tenant 
for  life,  settled  the  lands  in  question,  being  not  more  than  the  portion 
defined,  upon  his  wife  for  life.  He  died  in  1798,  leaving  his  wif.e 
surviving,  who  afterwards  married  a  person  of  the  name  of  Vale. 
In  1810,  Mr.  and  Mrs.  Vale  levied  a  fine  of  the  lands  to  their  own 
use  in  fee.    In  1812,  Mrs.  Vale  died,  more  than  twenty  years  before 

23  In  England,  except  in  cases  of  periodic  tenancies  and  of  course  ten- 
ancies at  will,  the  disclaimer,  in  order  to  effect  a  forfeiture,  must  be  by 
record.  Doe  d.  Graves  v.  Wells,  10  A.  &  E.  427  (1889).  A  tortious  alienation  by 
the  tenant  was  also  effective  under  the  older  law  to  bring  about  a  forfei- 
ture. Litt.  §  415.  As  to  the  situation  to-day,  where  the  tenant  makes  a 
•conveyance  in  fee,  see  Gee  v.  Hatley,  114  Ark.  .376,  170  S.  W.  72  (1914).  In 
this  country  a  few  early  cases  announced  the  same  doctrine  as  Doe  d.  Graves 
V.  Wells,  supra.  De  Lancey  v.  Ganong,  9  N.  Y.  9  (18.53) ;  Rosseel  v.  Jarvis,  15 
Wis.  571  (1862). 

See  Newman  v.  Rutter,  8  Watts  (Pa.)  51  (1839);  Dahm  v.  Barlow,  93  Ala. 
120,  9  South.  598  (1890). 


Ch.  1)  POSSESSORY   TITLES  67 

the  commencement  of  this  action.  Mr.  and  Mrs.  Vale  had  continued 
in  possession  of  the  lands  until  Mrs.  Vale's  death,  and  Mr.  Vale  from 
thenceforward  continued  in  possession  till  his  own  death,  which  oc- 
curred in  1832.  William  Rogers  died,  leaving  several  children,  all 
of  whom  died  before  Mrs.  Vale ;  and  of  whom  none  left  issue,  except 
one  daughter,  who  died  one  month  before  Mrs.  Vale,  leaving  issue  a 
son,  who  died  without  issue  in  1814,  within  twenty  years  of  the  bring- 
ing of  this  action.  The  lessor  of  the  plaintiff  was  heir  at  law  to  the 
devisor,  Thomas  Rogers.  It  did  not  appear  how  the  defendant  got 
into  possession.  On  these  facts,  the  learned  judge  nonsuited  the  plain- 
tiff, on  the  ground  that  the  right  of  entry  was  barred  by  the  Statute 
of  Limitations,  but  he  reserved  leave  to  move  to  set  the  nonsuit  aside, 
and  enter  a  verdict  for  the  plaintiff. 

Per  Curiam.  The  fine  will  make  no  difference ;  but,  as  to  the 
question  of  the  husband's  adverse  possession,  we  will  take  time  to  con- 
sider. 

On  a  subsequent  day  Lord  Denman,  C.  J.,  delivered  the  judgment 
of  the  court. 

The  other  points  moved  by  my  Brother  Talfourd  were  disposed  of 
by  the  court,  but  we  wished  to  consider  whether  he  was  entitled  to  a 
rule  on  the  ground  that  there  had  been  no  adverse  possession  for 
twenty  years.  The  fact  was,  that  the  defendant  had  been  in  possession 
for  a  longer  period,  from  his  wife's  death,  but  he  came  in  originally 
in  her  right,  and  had  not  directly  ousted  tlie  rightful  owner,  but  merely 
continued  where  he  was,  to  his  exclusion.  A  case  of  Reading  v.  Raw- 
sterne,  reported  by  Lord  Raymond  and  Salkeld,  (2  Ld.  Raym.  830; 
s.  c.  2  Salk.  423,)  was  mentioned ;  but  in  that  case,  though  an  actual 
disseisin  is  declared  necessary,  those  words  must  be  taken  with  refer- 
ence to  the  subject-matter,  and  are  there  contra-distmguished  from 
the  mere  perception  of  rents  and  profits,  in  the  case  of  jomt-tenants. 
But  in  Doe  dem.  Burrell  v.  Perkins,  3  M.  &  S.  271,  the  court  was  of 
opinion  that  a  fine  levied  by  a  person  who  was  in  possession  under  the 
same  circumstances  as  the  defendant  here,  operated  nothing,  because 
he  came  in  by  title,  and  had  no  freehold  by  disseisin ;  and  it  was  ar- 
gued, that  the  defendant  here  was  also  to  be  considered  as  having  en- 
tered rightfully,  and  committed  no  disseisin.  We  are,  however,  of 
opinion,  that  though  this  may  be  so  for  the  purpose  of  avoiding  a 
fine,  it  cannot  prevent  the  defendant's  possessjon_from  being_  wron^;:_ 
ful,  from  the  very  hour  when  his  interest  expired  by  his  wife's  death. 
It  is  clear  that  he  might  have  been  immediately  turned  out  by._ilect^ 
ment. 

We  think,  therefore,  fliat  his  continuing  the  same  possession  for 
twenty  years  entitles  him  to  the  protection  of  the  Statute  of  Limita- 
tions, and  that  this  action  has  been  brought  too  late.     Rule  refused.-* 

2^*  Henry  Souter,  the  owner  of  premises,  devised  them  to  his  wife  for  life. 
The  testator  died  in  1790,  leaving  John  Sovflier.  who  crainied  to  be  the  eldest 
son  and  heir  at  law,  and  his  said  wife,  him  survivingr   In  ITUi.  the  widow 


68  ,  OBiGiNAL  TITLES  (Part  1 

HANSON  et  al.  v.  JOHNSON. 
(Court  of  Appeals  of  Maryland,  1884.    62  Md.  25,  50  Am,  Rep.  199.) 

Appeal  from  the  Circuit  Court  for  Kent  County. 

This  was  an  action  of  ejectment,  instituted  on  the  11th  of  April, 
1882,  by  the  appellants  against  the  appellee.  The  case  was  tried  upon 
an  agreed  statement  of  facts,  which  are  sufficiently  set  forth  in  the 
opinion'  of  the  Court.  By  consent  a  pro  forma  judgment  was  entered 
in  tlie  Court  below  in  favor  of  the  defendant,  with  the  right  of  appeal 
by  the  plaintiffs. 

Robinson,  J.  This  is  an^ action  ^f_ejectment^ brought  by;Jhe  ap- 
pellants, as,  heirg-at-law  of  Catherine  H^  Wroth,  to  recover  an  undi- 
vided half  interest  in  a  tract  of  land,  of  which  she  died  seized. 

The  facts  are  these :  Mrs.  Wroth  died  in  December,  1854,  leaving 
a  paper  purporting  to  be  a  will,  by  which  she  devised  the  farm  in  con- 
troversy to  her  husband.  Peregrine  Wroth,  for  life,  with  remainder  in 
fee  to  her  nephew,  George  A.  Hanson. 

The  will  was  not  executed  in  due  form  to  pass  real  estate,  as  re- 
quired by  the  Act  of  1842,  chapter  293,  then  in  force,  because  the  con- 
sent of  her  husband,  in  writing,  was  not  annexed  thereto,  and  also 
because  it  was  not  executed  sixty  days  before  her  death.  It  was  ad- 
mitted, however,  to  probate  by  the  Orphans'  Court  of  Kent  County, 
,and  under  it  her  husband,  on  the  1st  of  January,  1855,  entered  into 
possession  of  the  property,  claiming  title  as  tenant  for  life,  and  so  con- 
tinued in  possession  until  the  5th  of  February,  1868,  when  he  united 
with  the  remainderman,  George  A.  Hanson,  in  a  sale  and  conveyance 
of  the  same  to  the  appellee,  and  who  thereupon  entered  upon  said  prop- 
erty, and  has  continued  in  possession  up  to  the  institution  of  this  suit. 

Mrs.  Wroth  never  had  any  children,  and  the  ^pellantSj._as_heirs- 
aMgvv,  are  entitled  to  recover,  unless  their  right  is  barred  by  the  ad- 
verse possession  of  the  appellee  and  of  those  under  whom  he  claims. 

A  great  deal  has  been  said,  as  to  what  constitutes  adverse  posses- 
sion, and  it  would  be  a  wearisome  task  to  examine  at  length  the  many 
cases  in  which  this  question  has  been  considered.  Prior  to  the  Stat- 
ute of  3  and  4  Will.  IV,  chapter  27,  it  was  an  ever-recurring  and  trou- 
blesome question  in  England,  but  by  that  Statute,  passed  in  1833,  the 
doctrine  of  adverse  possession  was  .virtually^aBoIished,  and  by  it  pos- 

and  John  Souter  iniripfl  iri  q  p/^r^-■~<:^,rqJ^r,p  pf  {-i^^  nrpmisps  to  Hnll^  wliri  j^nnk 
nnsspmsion  nnfL-pmriinprl  nnr1i^f]]rl)P(1  Hu-ipin  till  1.S14^  ^vlleD  he  Tlio'd,  leaving 
a_y(^^\.  whprehv  he  "devised  the  nieiuises  to  defeudauts.  Jn  tact  wniclier 
Souter  was  the  eldest  sou  and  heir  at  law  of  Henry  Souter,  whom  he  sur- 
vived. In  ISIO.  AV^hicher  made  his  will,  wherebv  he  devised  all  his  realty 
to  trustees  AVhicher  tSouter  diecL  sliortiv  after  makiug  lus  w_iil.  in  1816 
tEe  piamtin:  as  lessee  of  the  said  trustees  commenced  an  acfiou  of  eiject- 
ment  against  the  cietendants  to  recover  possession,  jt  was  held  thafilie 
t'il?lllMlll  snould  recover,  the  indues  vprpri-ing  to  Hull  as  a  tenant  at  suf- 
ferance  of  VVhicher  Souter.    Doe  d.  Souter  v.  Hull,  2  Dowl.  &  R.  3S  (1822). 


Ch.  1)  POSSESSORY  TITLES  69^ 

session  of  any  kind  for  twenty  years  was  made  a  bar,  unless  there  was 
eitlier  a  payment  of  rent  or  an  acknowledgment  of  some  kind  by  the 
party  in  possession.  The  effect  of  the  Statute,  says  Lord  Denman,  in 
CuUey  V.  Doe  dem.  Taylerson,  3  Per.  &  Dav.  539,  is  to  put  an  end 
to  all  questions  and  discussions  whether  the  possession  of  lands  be  ad- 
verse or  not ;  and  if  one  party  has  been  in  possession  for  twenty  years, 
whether  adversely  or  not,  the  claimant  whose  original  right  of  entry 
occurred  above  twenty  years  before  bringing  the  ejectment  is  barred. 
Nepean  v.  Doe  dem.  Knight,  2  M.  &  W.  911;  Doe  dem.  Pritchard 
V.  Jauncey,  8  C.  &  P.  99. 

This  Statute  is  not,  however,  in  force  in  this  State,  and  the  question 
of  possession  in  this  case,  is  one  to  be  determined  by  Stat.  21  Jas.  I, 
chap.  16,  which  provides  that  no  one  shall  make  an  entry  into  any  land 
but'  within  twenty  years  after  his  right  shall  accrue. 

Now  when  the  question  arose  whether  one  was  barred  by  twenty 
years  possession,  it  was  determined  by  considering  whether  he  had 
been  out  of  possession  under  such  circumstances  as  had  reduced  his 
interest  to  a  right  of  entry;  for  if  he  had,  then  as  tliat  right  of  en- 
try would  be  barred  by  the  Statute  at  the  end  of  twenty  years,  the  pos- 
session during  the  intermediate  time  was  adverse  to  him.  And  in 
order  to  determine  whether  he  had  been  out  of  possession  under  such 
circumstances  as  reduced  his  estate  to  a  right  of  entry,  it  was  neces- 
sary to  inquire  in  what  manner  the  person  who  had  been  in  possession 
during  the  time  held.  If  he  held  in  a  character  inconsistent  with  and 
hostile  to  the  title  of  the  claimant  to  the  freehold,  the  possession  was 
adverse.  2  Smith's  Leading  Cases,  531 ;  Nepean  v.  Doe  dem.  Knight, 
2  M.  &  W.  910;   Taylor  ex  dem.  Atkyns  v.  Harde,  1  Burr.  60. 

"Twenty  years  adverse  possession,"  says  Lord  Mansfield,  in  Taylor 
V.  Horde,  "is  a  positive  title  to  the  defendant ;  it  is  not  a  bar  to  the 
action  or  remedy  of  the  plaintiff  only,  but  takes  away  his  right  of  pos- 
session." 

The  question  then  of  adversary  possession  in  this  case,  resolves  it- 
self into  this,  was  the  possession  of  Doctor  Wroth,  under  whom  the 
appellee  claims,  inconsistent  with  and  hostile  to  the  title  of  the  appel- 
lants as  heirs-at-law  ?  And  in  regard  to  this  question  there  ought  not, 
it  seems  to  us,  to  be  any  doubt.  During  the  life-time  of  his  wife  he 
received,  it  is  admitted,  the  rents  and  profits  of  the  farm  in  contro- 
versy. To  these  he  was  entitled  by  virtue  of  his  marital  rights.  Upon 
her  death,  this  right  ceased.  He  was  not  tenant  by  the  curtesy,  be- 
causejii.s^yi,f.e  never  jiad  any  children.  He  was  not  a  tenant  by  suffer- 
ance, because  an  estate  at  sufferance  Is  where  one  comes  into  posses- 
sion by  lawful  title,  but  keeps  it  afterwards  without  any  title  at  all. 
Or,  as  Lord  Coke  says,  "one  who  originally  comes  in  by  right,  but 
continues  by  wrong."  It  is  a  tenancy  founded  originally  on  contract 
and  agreement,  as  a  lessee  for  years,  who  continues  in  possession  after 
the  expiration  of  his  term,  and  without  a  renewal  of  the  lease,  or  a 
tenant  at  will,  who  holds  over  after  the  death  or  alienation  of  the 


70  ORIGINAL  TITLES  (Part  1 

lessor,  or  a  tenant  per  autre  vie,  who  remains  in  possession  after  the 
death  of  the  cestui  que  vie.    Coke  on  Little.  57b. 

After  the  death  of  his  wife.  Doctor  Wroth  took  possession,  claim- 
ing a  life  estate  under  her  will.  His  claim  of  title  was  inconsistent 
with  and  hostile  to  the  title  of  the  appellants  as  heirs-at-law.  The 
property  was  a  farm,  under  enclosure  and  under  cultivation;  his  pos- 
session was  actual,  visible,  and,  according  to  all  the  authorities,  ad- 
verse to  the  title  of  the  lawful  owner. 

But  then  it  is  argued,  to  constitute  adverse  possession,  one  must 
claim  the  entire  estate,  or  claim  to  the  exclusion  of  all  other  rights. 
In  one  sense  this  is  true.  Possession  will  not  be  adverse  if  it  be  held 
under  or  subservient  to  a  higher  title,  nor  if  it  be  consistent  with  the 
interest  or  estate  of  the  claimant,  for  instance,  where  the  possession 
of  one  is  the  possession  of  the  other,  or  where  the  estate  of  one  in 
possession  and  that  of  the  claimant  form  different  parts  of  one  and 
the  same  estate.  The  mere  entry  and  possession  of  one  tenant  in  com- 
mon, or  joint  tenant,  or  coparcener,  will  not  be  adverse  to  the  co-ten- 
ant, because  the  possession  of  one,  is  the  possession  of  the  other.  To 
constitute  adverse  possession  in  such  cases,  there  must  be  an  ouster, 
an  entry  and  possession,  hostile  to  the  title  of  the  co-tenant.  Nor 
will  the  possession  of  a  tenant  for  years,  or  tenant  for  life,  be  adverse 
to  the  reversioner  or  heir  in  remainder. 

The  decisions  in  Smith  v.  Burtis,'9  Johns.  (N.  Y.)  180;  Howard  v. 
Howard,  17  Barb.  (N.  Y.)  667;  Doe  dem.  Human  v.  Pettett,  5  Barn.  & 
Aid.  223;  Dean  et  al.  v.  Brown,  23  Md.  16,  87  Am.  Dec.  555 ;  Bedell 
V.  Shaw  et  al.,  59  N.  Y.  46,  were  decided  upon  these  well  settled  prin- 
ciples. 

In  this  case,  however.  Doctor  Wroth  entered  into  possession,  claim- 
ing a  life  estate  under  the  will,  the  remainder  being  devised  to  another 
person.  The  estate  claimed  by  him  was  a  freehold,  and  as  there  could 
only  be  one  possession  or  seizin  of  the  same  estate  at  the  same  time, 
his  possession  enured  to  the  benefit  of  the  remainder-man.  His  pos- 
session was  in  law  the  possession  of  the  remainder-man,  and  as  such 
it  represented  the  entire  estate,  his  own  estate  for  life,  and  the  estate 
of  George  A.  Hanson  in  remainder.  And  his  claim  of  title  and  pos- 
session being  hostile  to  the  title  of  the  appellants  as  heirs-at-law,  his 
possession  was  as  against  them,  adverse  and  exclusive.  The  will  was 
it_is__true_  invalid,  but  Doctor  Wroth  having  enteredinto  possession^ 
clainiingtit:le_  under  it,  he  would  be  estopped  from  denying  the  title_ 
of  the  remainder-man  claiming  under  the  same  instrument.  This  was 
decidfed  in  Board  v.  Board,  Law  Rep.  9  Q.  B.  48.  In  that  case,  a 
tenant  by  the  curtesy  undertook  to  devise  the  curtesy  estate  to  his 
daughter  for  life,  with  remainder  to  his  grandson.  Upon  the  death  of 
the  testator,  the  daughter  entered  into  possession,  and  having  been  in 
possession  for  twenty  years  sold  and  conveyed  the  property  in  fee  to 
the  defendant.  In  the  meantime  the  grandson  sold  his  reversionary 
right  to  the  plaintiff,  and  upon  the  death  of  the  daughter,  he  brought 


Ch.  1)  POSSESSORY   TITLES  71 

an  action  of  ejectment,  and  it  was  held,  that  the  daughter  having_  eri:_ 

tered  under  the  will,  the  defenda_nt  claiminig  under  her,,  was  estopped  w^ 

as  against  all  those  in  remainder,_  f rom  disputing  the  validity  of  tlie 

\vill,  and  that  the  plaintiff  was  entitled  to  recover. 

Mellor,  J.,  said,  "The  only  person  who  could  dispute  the  possession 
of  Rebecca,  under  the  will,  was  the  heir-at-law.  He  never  disputed 
the  possession,  and  his  title  to  the  estate  is  barred  by  the  operation 
of  the  Statute  of  Limitations.  A  person  cannot  say,  that  a  will  is_ 
valid  to  enable  him  to  take  a  benefit  under  it^  but  invalid  so  far  as 
regards  the  interests  pf  those  in  remainder^who  claim  under,  th^  same 

This  case  was  decided,  it  is  true,  after  the  passage  of  the  Stat,  of  3 
&  4  Will.  IV,  but  the  claim  of  title  and  possession  by  the  daughter, 
being  hostile  and  inconsistent  with  the  title  of  the  heir-at-law,  her  pos- 
session was  adverse  under  the  Stat.  21  Jas.  I,  as  against  the  lawful 
title.  And  being  adverse,  the  heir-at-law  must  bring  his  action  with- 
in twenty  years,  or  his  title  will  be  barred  by  the  Statute  of  Limitations. 
It  is  better,  says  the  law,  that  the  negligent  owner  who  has  omitted  to 
assert  his  right  within  the  time  prescribed  by  the  Statute,  should  lose 
his  rights  than  one  should  be  disturbed  in  his  possession,  and  harassed 
by  stale  demands  after  the  proof  on  which  his  title  rests  may  have 
been  lost  or  destroyed.  But  whatever  may  be  the  reasons  or  the  pol- 
icy of  the  law,  twenty  years  adverse  posS£SsiQli_is_a  bar  to  the  title, 
without  regard  to  the „Qlii;inal  right  of  the  parties. 

The  possession  being  adverse  and  exclusive  in  tliis  case,  the  only  re^ 
maining  question_is,  whether  it  has  been  continuous  for  twenty  years? 
And  this  depends  upon  whether  the  possession  of  Doctor  Wroth  can 
be  united,  or  in  other  words  tacked  to  the  possession  of  the  appellee. 

,Now  the  possession  .Qi§e]^rttL.disJtincJ;_occupa^  of  land  between 
whom  no  privity  exists^  cannot,  it  is  true^  be  united  to  make  up  the 
statutory  period,  for  the  reason,  if  one  quits  or  abandons  the  posses- 
sion, the  owner  will  be  deemed  to  be  in  the  constructive  possession  of 
the  property  by  reason  of  his  title.  The  separate  successive  disseisins 
in  such  cases  do  not  aid  each  other,  and  their  several  possessions  can- 
not therefore  be  tacked,  so  as  to  make  a  continuity  of  possession. 

But  we  take  it  to  be  well  settled  that  where  there  is  a  privity  of 
estate  between  the  successive  parties  in  possession,  then  the  posses- 
sion of  such  parties  may  be  united  so  as  to  make  the  twenty  years  re- 
quired by  the  Statute.  And  it  is  equally  well  settled  that  such  privity 
may  be  created  by  a  sale  and  conveyance  and  possession  under  it,  as 
well  as  by  descent.    As  was  said  by  Tilghman,  C.  J.,  in  Overfield  v. 

2  5  In  England  the  rule  of  Board  v.  Board  is  not  considered  as  applicable 
in  facts  such  as  appeared  here.     In  re  Anderson,  [1905]  2  Ch.  70. 

On  the  interesting  question  as  between  the  life  tenant  and  the  remainder- 
manT^r  lliusu  claiming  'under  them,  the  rights  of  the  true  owner  aamut^tlij 
being  oarred  oy  rne  aaverse  possession  of  tiie  lite  tenant,  see,  lurtner.  Eialton 
V?  I' ILZgerald,  [iSUVJ  1  (Jh.  440.  ' ■ 


72  ORIGINAL  TITLES  (Part  1 

Christie,  7  Serg.  &  R.  (Pa.)  177,  "One  who  enters  upon  the  land  of 
another  and  continues  to  reside  on  it,  acquires  something  which  he 
may  transfer  by  deed  as  well  as  by  descent,  and  if  the  possession  of 
such  person,  and  others  claiming  under  him,  added  together,  amounts 
to  the  time  limited  by  the  Act  of  Limitations,  and  was  adverse  to  him 
who  had  the  legal  title,  the  Act  is  a  bar  to  a  recovery."  Angell  on 
Limitations,  414,  420;  Wood  on  Limitations,  §  271;  Tyler  on  Eject- 
ment, 910. 

In  this  case  there  was  an  adverse  and  exclusive  possession  of  ihs 
farm  in  question  by  Doctor  Wroth  for  thirteen  years.  He  then  united 
with  George  A.  Hanson,  the  remainder-man,  in  a  sale  and  convey- 
ance to  the  appellee,  who  immediately  entered  and  has  continued  in 
possession  up  to  the  present  time ;  the  possession  of  the  appellee,  thus 
added  or  tacked  to  the  possession  of  Doctor  Wroth,  makes  a  continu- 
ous adverse  possession  of  twenty-seven  years.  The  possession  un- 
der  such  circumst'ahces"!^  By  the  Statute  of  Limitations  a  flat  bar  to 
the  right  of  the  appellants  as  heirs-at-law. 

The  judgment  below  must  therefore  be  affirmed.  Judgment  af- 
firmed.^* /-         > 

DEAN  V.  GODDARD  et  al. 
(Supreme  Court  of  Minnesota,  1893.     55  Minn.  290,  56  N.  W.  lOGO.) 

Appeal  by  defendant,  Fred  E.  Goddard,  from  an  order  of  the  Dis- 
trict Court  of  Hennepin  County,  Thomas  Canty,  J.,  made  December 
3,  1892,  denying  his  motion  for  a  new  trial. 

The  plainlifi^.  Alfred  J.  Dean,  brought  this  action  September  2,  1891, 
under  G.  S.  1878,  ch.  75,  §  2,  to  determine  the  adverse  claims  of  God- 
dard, and  all  other  persons  or  parties  unknown  claimmg  any  right, 
title,  estate  lien  or  interest  in  the  real  estate  described  in  the  opmion. 
Goddard  alone  answered.  He  claimed  to  have  the  title  in^fee  derived 
from  the  United  States.  Plaintiff  replied  that  neither  Goddard  his 
ancestor,  predecessor  or  grantor  was  seized  or  possessed  of  the  lot 
witliin  fifteen  years  next  before  the  commencement  of  the  action. 
That  Alfred  H.  Lindley  owned  the  lot  in  1866  and  he  and  wife  on 
August  28,  1866,  conveyed  it  to  William  D.  Washburn,  that  on  or 
about  June  1,  1866,  Washburn  entered  into  actual  possession  of  the 
lot  under  such  deed  and  he  and  his  grantees  have  ever  since  and  for 
more  than  fifteen  years  prior  to  the  commencement  of  this  action, 

2  6  Premises  are  owned  by  A.,  tenant  for  life,  remainder  in  fee  to  B.  X. 
enters  into  adverse  possession,  and  continues  therein  for  more  than  the  statu- 
tory period.  What  effect,  if  any,  does  such  possession  have  upon  the  rights 
of  A.?  Of  B.?  See  Moore  v.  Luce,  29  Pa.  2G0,  72  Am.  Dec.  629  (1857) ;  Bald- 
ridge  V.  McFarland,  26  Pa.  338  (1855),  where  the  remainder  may  have  been 
contingent. 

Suppose,  in  the  above  case,  A.  should  make  a  deed  purporting  to  convey 
the  premises  to  X.  in  fee,  who  takes  possession,  and  continues  therein  for  the 
statutory  period.  See  Cassem  v.  Prindle,  258  111.  11,  101  N.  E.  241  (1913); 
Hooper  v.  Leavitt,  109  Me.  70,  82  Atl.  547  (1912). 


Ch.  1)  POSSESSORY  TITLES  73 

been  in  actual,  exclusive,  open,  hostile  and  adverse  possession  thereof, 
under  claim  and  color  of  title  and  that  plaintiff  is  the  remote  grantee 
of  Washburn. 

A  jury  was  waived  and  the  issues  were  tried  before  the  Court  on 
August  2,  1892.  Plaintiff  submitted  evidence  of  the  possession  of  the 
lot  by  himself  and  his  grantors  and  read  in  evidence  the  several  instru- 
ments under  which  such  possession  had  been  held  and  rested.  The 
defendant  Goddard  then  proved  his  paper  title  from  the  Federal  Gov- 
ernment down  and  rested.  The  Court  foujid  plaintiff  to  be  sole  owner 
in  fee  and  in_possession  of  the  lot  and  jhat  he  and  his_grantors  and 
predecessors  in  interest  had  been  in  open,  continuous,  exclusive  and 
adverse  possession  thereof,  with  color  of  title  and  paying  taxes  tHere- 
on,  for  a  period  of  twenty  years  and  ordered  judgment  for  plaintiff 
as  prayed  in  his  compLaint. 

The  defendant  moved  the  Court  to  amend  its  findings  so  as  to  show 
that  Washburn's  adverse  possession  commenced  on  or  about  August 
28,  1866,  the  date  of  his  deed  from  Lindley  and  wife  and  not  prior 
thereto.  This  motion  was  denied.  Defendant  then  moved  for  a  new 
trial,  but  was  denied  and  he  appeals,  claiming  the  evidence  does  not 
show  actual,  continuous  hostile  occupation  of  the  lot  by  plaintiff  and 
his  grantors  for  an  uninterrupted  period  of  fifteen  years  at  any  time 
since  Washburn  obtained  his  deed  from  Lindley.  The  discussion  here 
was  upon  this  evidence,  whether  it  sustained  the  finding  of  adverse  pos- 
session. 

Buck,  J.  The  jC|^uesti_on_raised  in  this  case  is  whether  the  plaintiff 
has  acquired  title  by  adverse  possession  to  the  premises  described 
in  the  complaint,  viz.  the  front  half  of  lots  one  (1)  and  two  (2)  in 
block  sixty-seven  (67)  in  the  city  of  Minneapolis. 

The  action  was  commenced  in  August,  1891.  In  his  complaint  the 
plaintiff  alleges  that  he  is  in  possession,  and  is  the  owner  in  fee  sim- 
ple, of  the  premises  above  described,  and  that  the  defendants  claim 
some  estate  or  interest  in  the  premises  adverse  to  the  plaintiff,  and 
prays  that  the  claims  of  the  respective  parties  be  adjudged  and  de- 
termined, and  that  title  to  said  premises  be  decreed  to  be  in  the  plain- 
tiff'. The  defendant  Goddard  answered,  and  alleged  the  title  in  fee 
to  be  in  himself.  The  plaintiff  replied,  and  such  reply  will  be  refer- 
red to  hereafter.  Plaintiff's  contention  is  that  he  acquired  titlQ  by 
possession  held  adversely  for  such  a  length  of  time  as  to  create  a. title 
in  himself. 

Under  G.  S.  1878,  ch.  66,  §  4,  the  time  limited  for  commencing  ac- 
tions for  the  recovery  of  real  property  was  fixed  at  twenty  years ;  but 
on  April  24,  1889,  the  law  was  changed  to  fifteen  years,  not  to  take 
effect,  however,  until  January  1,  1891.  The  law,  as  amended,  would 
be  applicable  to  actions  commenced  after  January  1,  1891,  and  prior  to 
the  time  of  the-  commencement  of  this  action,  in  September,  1891 ;  but 
this  would  not  render  the  law  existing  prior  to  the  amendment  inap- 
plicable to  causes  of  action,  when  there  was  twenty  years'  adverse 


74  ORIGINAL  TITLES  (Part  1 

possession  before  the  time  when  the  change  took  effect.  The  period, 
however,  rehed  upon,  need  not  be  the  twenty  years  immediately  pre- 
ceding the  1st  day  of  January,  1891,  It  would  be  sufiicient  if  the  pos- 
session relied  upon  was  continuous  for  twenty  years  up  to  any  certain 
or  definite  time.  Of  course,  the  twenty  years  would  have  to  be  com- 
plete before  the  bringing  of  the  action;  but  such  twenty  years  need 
not,  necessarily,  be  those  next  before  the  time  when  the  action  is  com- 
menced. In  this  case,  if  the  inception  of  the  plaintiff's  adverse  pos- 
session was  in  the  months  of  June  or  August,  1866,  and  became  per- 
fect by  continued  adverse  possession  until  the  month  of  June  or  August, 
1886,  then  the  title  thereby  created  would  not  be  lost  or  forfeited  by 
any  subsequent  interruption  of  the  possession,  unless  by  some  other 
adverse  possession  for  such  a  length  of  time  as  would  create  title  in 
the  possessor. 

The  court  below  found  the  allegations  in  the  plaintiff's  complaint 
to  be  true,  and  that  he  was,  at  the  time  of  the  commencement  of  this 
action,  the  sole  owner,  in  fee,  and  in  the  lawful  possession,  of  the 
premises  described  in  the  complaint,  and  that  he  and  his  grantors  and 
predecessors  in  interest  had  been  in  the  open,  continuous,  exclusive, 
and  adverse  possession  of  the  premises,  with  color  of  title,  and  paying 
taxes  thereon,  for  a  period  of  twenty  years,  and  that  he  was  entitled 
to  the  decree  and  judgment  of  the  court  declaring  him  to  be  the  abso- 
lute owner  of  the  premises.  We  think  a  title  acquired  by  adverse 
possession  is  a  title  in  fee  simple,  and  is  as  perfect  as  a  title  by  deed. 
The  legal  eft'ect  not  only  bars  the  remedy  of  the  owner  of  the  paper 
title,  but  divests  his  estate,  and  vests  it  in  the  party  holding  adversely 
for  the  required  period  of  time,  and  is  conclusive  evidence  of  such 
title.  To  say  that  the  statutes  upon  this  subject  only  bar  the  remedy, 
as  some  authorities  do,  is  only  to  leave  the  fee  in  the  owner  of  the  pa- 
per title ;  thus  leaving  the  owner  with  a  title,  but  without  a  remedy. 
We  think  the  better  and  more  logical  rule  is  to  hold  that  the  occu- 
pier of  the  premises  by  adverse  possession  acquires  title  by  that  pos- 
session, predicated  upon  the  presumption  or  proven  fact  that  the  prior 
owner  has  abandoned  the  premises.  Adverse  possession  ripens  into  a 
perfect  title.  This  title  the  adverse  possessor  can  transfer  by  con- 
veyance, and  when  he  does  so  he  is  conveying  his  own  title,  and  not 
a  piece  of  land  where  the  title  is  in  some  other  person,  who  is  simply 
barred  of  any  remedy  from  recovering  it.  See  Campbell  v.  Holt, 
115  U.  S.  620,  6  Sup.  Ct.  209,  29  L.  Ed.  483;  Baker  v.  Oakwood,  123 
N.  Y.  16,  25  N.  E.  312,  10  L.  R.  A.  387,  and  cases  there  cited.  Now, 
if  there  is  any  cloud  resting  upon  such  title,  he  has  a  legal  right  to 
apply  to  the  court,  and  have  his  rights  adjudicated,  and  the  title  per- 
fected by  judgment  record,  if  the  evidence  sustains  his  claim.  Con- 
siderations of  public  policy  demand  that  this  should  be  so,  for  the  claim 
of  title  to  lands  can  thus  be  found  of  record,  instead  of  resting  in 
parol,  with  all  of  its  incidental  dangers  and  trouble  in  establishing 
title. 


Ch.  1)  POSSESSORY  TITLES  75 

Now  let  us  consider  the  question  raised  by  the  defendant,  as  to 
whether  one  of  the  plaintiff's  predecessors,  Washburn,  entered  into  the 
adverse  possession  of  the  premises  June  1,  1866,  or  August  28,  1866. 
The  plaintiff  claims  such  entry  was  on  the  1st  day  of  June,  and  the 
defendant  insists  that  the  true  date,  if  there  was  any  such  adverse 
entry  at  all,  is  shown  by  plaintiff  himself,  in  his  reply,  to  be  August 
28,  1866.  The  importance  of  these  dates  arises  from  the  fact  tliat 
there  is  evidence  tending  to  show  an  adverse  possession  of  the  prem- 
ises by  the  predecessors  of  plaintiff'  until  the  middle  of  July,  1886; 
and  if  the  period  of  twenty  years  commenced  June  1,  1866,  of  course, 
the  expiration  of  that  period  would  be  June  1,  1886,  and  if  the  period 
commenced  August  28,  1866,  the  twenty  year  period  would  expire 
August  2^,  1886.  Thus,  the  true  date  becomes  material.  The  plain- 
tiff", in  his  amended  reply,  inserted  the  following  allegation,  viz. : 
"That  on  or  about  the  1st  day  of  June,  1866,  and  more  than  fifteen 
years  prior  to  the  commencement  of  this  action,  said  William  D. 
Washburn,  under  the  deed  hereinbefore  recited,  executed  to  him  by  said 
Lindley,  and  claiming  thereby  to  be  the  owner  of  said  premises,  en- 
tered into  possession  and  actual  occupation  of  the  same."  The  deed 
referred  to  bears  date  August  28,  1866.  It  may  be  that  there  is  suffi- 
cient undisputed  evidence  to  show  an  adverse  possession  during  this 
particular  time,  but  we  think  that,  under  the  circumstances,  the  par- 
ties are  entitled  to  the  opinion  of  this  court  upon  this  phase  of  the 
case.  The  fault  of  the^defendant's  position  is  this :  That  he  allowed 
the  plaintiff  to  introduce  and  prove  beyond  dispute,  by  parol  evidence, 
without  objection,  that  Washburn  entered  upon  these  premises  June 
1,  1866. 

The  rule,  therefore,  that  the  written  allegations  of  the  pleadings 
should  control,  does  not  apply.  The  defendant  did  not  move  to  have 
the  pleadings  made  certain  and  definite,  nor  to  compel  the  plaintiff'  to 
elect  upon  which  of  the  dates  he  would  rely  as  the  time  of  W^ash- 
burn's  entry  upon  the  premises,  but  remained  silent,  and  allowed  the 
date  of  June  1,  1866,  to  be  undisputably  proven  by  the  plaintiff.  The 
allegations  in  the  reply  were  repugnant  as  to  the  dates  of  Washburn's 
entry,  but  the  defendant,  by  his  conduct,  waived  his  right  to  insist 
now  that  the  date  of  such  entry  should  be  determined  as  of  August 
28,  1866.  He  is  esjopped  by  the  admitted  parol  evidence  from  in- 
sisting that  the  written  pleadings  should  be  construed  in  his  favor, 
and  against  the  plaintiff. 

There  is  no  dispute,  however,  that  Washburn  did  procure  a  deed  of 
the  premises  from  Lindley  dated  August  28,  1866;  and  the  defend- 
ant therefore  contends  that  Washburn's  entry,  if  adverse  at  all, 
should  only  be  considered  as  having  commenced  on  the  date  of  the 
deed.  To  support  this  contention,  he  invokes  the  doctrine  that  one 
who  enters  upon  land  under  a  mere  agreement  to  purchase  does  not 
hold  adversely,  as  against  his  vendor,  until  his  agreement  has  been 
fully  performed,  so  that  he  has  become  entitled  to  a  conveyance.    This 


76  ORIGINAL  TITLES  (Part  1 

doctrine  is  not  applicable  to  this  case.  Washburn's  entry  and  holding 
was  not  under  this  defendant,  nor  any  of  his  predecessors  holding 
paper  title.  As  we  have  already  stated,  it  appears  that  he  was  in 
possession  on  the  1st  day  of  June,  1866;  and  whether  by  permission 
of  Lindley,  or  by  his  own  voluntary  entry,  is  immaterial,  as  to  his 
rights  against  parties  other  than  Lindley,  and  Lindley  is  not  complain- 
ing, or  questioning  his  rights,  or  time  of  entry.  Nor  is  defendant 
claiming  title  under  Lindley.  If  permissive  possession,  with  parol 
executory  conditions  attached,  would  not  constitute  adverse  possession 
as  between  the  parties,  yet  it  might  constitute  adverse  possession  as 
against  third  persons  or  strangers.  'Washburn's  entry  was  adverse 
as  against  those  under  whom  defendant  claim's  by  paper  title.  If, 
therefore,  Washburn's  entry,  of  June  1,  1866,  was  his  own  adverse 
act,  and  he  so  continued  in  possession  of  the  premises  until  long  after 
August  28,  1866,  tliere  is  no  need  of  considering  the  doctrine  of  tack- 
ing, or  the  necessity  of  the  continuity  of  possession.  Obtaining  a  deed 
to  the  premises  from  Lindley  would  not  destroy  Washburn's  previous 
adverse  possession,  nor  break  its  continuity.  He  had  a  right  to 
strengthen_his_ adverse  claim  to  the  premises,  if  possible,  by  as  niany 
written  conveyances  from  other  parties  claiming  any  interest  therein 
as  he  saw  fit,  and  thus  give  him  color  of  title,  and  perhaps  define  the 
boundaries  of  the  premises  claimed  by  him. 

The  essential  ingredients  necessary  to  create  title  by  adverse  pos- 
session are  now  so  well  defined  and  understood  that  we  shall  not  enter 
into  any  argument  or  discussion  to  show  what  they  are.  We  merely 
state  them  in  this  connection  that  we  may  the  more  conveniently  ap- 
ply them  to  the  undisputed  facts  in  this  case.  "To  je  adverse,  posses- 
sion  mustbe  actual,  open,  continuous,  hostile,  exclusive,  and  accom- 
-^  panFed  by  an  intention  to  claim  adversely."     Sherin  v.  Brackett,  36 

llinn.  152,  30  N.  W.  551. 

This  leads  us  to  the  question  raised  by  defendant,  that  the  court 
below  did  not  find,  specifically,  that  plaintiff's  possession,  or  the  pos- 
session of  his  predecessors,  was  hostile.  But  it  did  find  that  such 
possession  was  open,  continuous,  exclusive,  and  adverse  during  the 
requisite  period.  The  greater  includes  the  le^s.  If  it  \yas  adverse,  it 
was  hostile.  In  Sedg."&  W7 Tr."  Title  Land,  §  749,  it  is  said  that  "it  is 
tautology  to  say  that  adverse  possession  must  be  'hostile.'  "  Such  hos- 
tility may  be  manifested  by  acts  of  possession  and  use  of  the  prem- 
ises, plainly  visible,  actual,  open,,  and  continuous,  such  as  appeared  in 
this  case,  by  using  the  premises  for  many  years  as  a  lumber  yard, 
building  a  barn  and  shed  thereon  in  1866  or  1867,  and  keeping  the 
same  on  the  premises  until  they  burned  down,  in  March,  1884,  and 
keeping  a  large  number  of  horses  on  the  premises  and  in  the  stables 
for  many  years.  Also,  storing  machinery,  lamp  posts,  castings,  and 
other  personal  property,  putting  a  large  sign  on  the  lot,  with  notice 
thereon  that  it  was  for  rent,  for  a  long  term  of  years,  were  acts  of 
hostility,  as  tending  to  show  very  strongly  that  someone  was  assuni- 


Ch.  1)  POSSESSORY  TITLKS  77 

ing  dominion  over  the  premises,  and  had  intended  to,  or  was  usurping 
the  possession. 

If,  as  was  said  by  the  Court  in  Stephens  v.  Leach,  19  Pa.  263,  the 
adverse  possessor  "must  keep  his  flag  flying,"  yet  it  is  no  less  essen- 
tial that  the  actual  owner  should  reasonably  keep  his  own  banner 
unfurled.  The  law,  which  he  is  presumed  to  know,  is  a  continual  warn- 
ing to  him  that  if  he  shall  allow  his  lands  to  remain  unoccupied,  un- 
used, unimproved,  and  uncultivated,  he  may  by  adverse  possession 
for  a  long  period  of  time,  fixed  by  law,  be  disseised  thereof,  and  be 
deemed  to  have  acquiesced  in  the  possession  of  his  adversary.  In 
this  case,  the  actual  owners  by  paper  title  have  never  occupied  tlie 
premisessince  the  first  owner  obtained  his  title  from  the.  government, 
in  1855  or  1856.  Considerations  of  public  policy,  demand  that  our 
lands  should  not  remain  for  long  periods  of  time  unused,  unimproved, 
and  unproductive.  Taxes  should  be  promptly  paid.  It  nowhere  ap- 
pears that  the  owners  by  paper  title  have  ever  paid  any  taxes,  but 
they  have  allowed  the  adverse  occupants,  during  a  period  of  many 
years,  to  pay  nearly  ^5,000  taxes  upon  the  premises.  Payment  of  taxes 
showg  claim  of  title.  Paine  v.  Hutchins,  49  Vt.  314.  We  can  readily 
understand  how  these  statutes  are  called  "statutes  of  repose."  The 
burdens  of  government  must  be  met;  its  educational  interests  pro- 
vided for;  its  judicial,  legislative,  and  executive  functions  main- 
tained ;  and  to  do  this  our  real  property  must  be  made  productive,  to 
the  end,  among  other  things,  that  taxes  may  be  raised  and  paid  from 
land  not  subject  to  continual  litigation,  but  the  titles  thereto  quieted. 
If  the  selfish,  the  indolent,  and  the  negligent  will  not  do  this,  there  is 
no  more  merit  in  their  claim  than  that  of  the  adverse  possessor,  who 
does  so,  whatever  may  be  said  of  the  harshness  of  the  statute  of  limi- 
tation. The  settlement  and  improvement  of  the  country,  with  its  con- 
segiient  prosperity,  should  be  superior  and  paramount  to  the  specu- 
lative rights  of  the  land  grabber,  or  selfish  greed  of  those  who  seek_ 
large  gains  through  the  toil,  labor,  and  improvements  of  others. 

The  hostile  possession  of  the  adverse  claimants  in  this  case  fully 
appears.  The  possession  has  been  open,  visible,  hostile,  and  notorious, 
as  appears  from  the  evidence.  It  has  been  exclusive,  for  no  one  else 
has  made  any  claim  to  it.  Those  who  have  been  on  the  premises,  oth- 
er than  plaintiff  or  his  predecessors,  have  made  no  claim  of  right,  but 
have  paid  rent  to  the  adverse  claimant,  or  were  there  simply  as  tres- 
passers, which  would  not  break  the  continuity  of  possession.  The 
intent  to  claim  may  be  inferred  from  the  nature  of  the  occupancy. 
Oral  declarations  are  not  necessary.  Possessory  acts,  to  constitute 
adverse  possession,  must  necessarily  depend  upon  the  character  of 
the  property,  its  location,  and  the  purposes  for  which  it  is  ordinarily 
fitted  or  adapted.  If  a  person  should  take  possession  of  farm  land, 
build  a  barn  and  shed  thereon,  and  allow  them  to  remain  there  for 
years,  plow  and  cultivate  the  land  and  harvest  the  crops,  pay  taxes 
on  the  premises,  and  actually  occupy  them,  for  such  a  period  of  time, 


78  ORIGINAL  TITLES  (Part  1 

as  is  usually  done  by  the  actual  owner  of  such  farm  land,  with  such 
open,  notorious,  visible,  hostile,  and  exclusive  acts  as  would  destroy 
the  actual  or  constructive  possession  of  the  true  owner,  if  continued 
long  enough,  it  would  ripen  into  a  complete  title,  although  there  might 
not  be  actual  residence  upon  the  premises  by  the  adverse  claimant 
or  possessor.  The  acts  necessary  for  such  purpose  might  be  different 
with  a  city  lot.  The  question  is  to  what  purpose  may  it  be  ordinarily 
fit  and  adapted,  and  reasonably  used.  In  a  large  manufacturing  city, 
with  vast  lumber  interest,  the  use  of  a  lot  for  piling  lumber  thereon, 
and  there  storing  it  or  keeping  it  for  sale,  might  be  the  best  use  to 
which  such  lot  could  possibly  be  adapted.  And,  as  part  of  such  busi- 
ness, the  building  of  a  barn  and  shed  thereon,  for  keeping  and  stabling 
horses  used  in  procuring  logs,  as  a  part  of  such  lumber  business,  would 
constitute  a  very  strong  ingredient  of  adverse  possession. 

Tlie  jiiere  fact  that  time  may  intervene  between  successive  _acts  of 
occupancy^  while  a  party  is  engaged  in  such  lumber  business,  as^By 
taking  his  teams  from  such  stable  and  shed,  and  using  them  in  pro- 
curing logs  to  be  sawed  into  lumber  to  be  by  him  piled  and  stored  up- 
on such  premises,  does  not  necessarily  destroy  the  continuity  of  pos-_ 
session.  During  such  time,  the  lumber  left  upon  the  lot,  the  barn  and 
shed  there  remaining,  and  various_implements  connected  with  such  lum- 
ber business  used  upon  the  premises,  would  indicate  that  some  one 
was  exercising  acts  of  dominion  over  the  lot,  even  though  the  party 
was  occasionally  and  temporarily  absent  upon  the  business  for  which 
he  was  using  such  lot. 

We  think  the  whole  record  herein  presents  such  a  state  of  facts 
that  the  court  below  was  justified  in  its  finding  and  decision.  If  there 
was  error  in  admitting  testimony  showing  that  sand  was  removed 
from  the  premises  after  the  commencement  of  this  action,  it  certainly 
could  not  have  prejudiced  the  defendant. 

We  find  no  prejudicial  error,  and  the  order  of  the  court  below,  de- 
nying a  motion  for  a  new  trial,  is  affirmed. ^^ 

2  7  See  Skipwith  v.  Martin,  50  Ark.  141.  6  S.  W.  514  (1SS7).  See,  also, 
Rupley  V.  Fraser  (Minn.)  156  N.  W.  350  (1916). 

A.  entered  into  the  possession  of  land,  snnpo^iing  it  belonged  to  the  United 
SJates,  and  intending  to  ac(^T1it'e  same  unaer  the  United  Stntes  i.nnrt  Jaws. 
In  tact  thp  innrt  had  already  been  acquiretl  from^  the  government  by  B.  ILttei- 
A.  has  been-  in  possession  for  the  period  of  the  statute  of  Umitatlons,  ne  seeks 
to  have  his  title  quieted,  or  B.  sues  to  recover  possession.  See  Io\va  Rail- 
road Co.  v.  Blumer,  206  U.  S.  482.  27  Sup.  Ct.  769,  51  L.  Ed.  1148  (1906); 
Maas  V.  Burdetzke.  93  Minn.  295,  101  N.  W.  182,  106  Am.  St.  Rep.  436  (1904) ; 
Boe  V.  Arnold,  54  Or.  52,  102  Pac.  290.  20  Ann.  Cas.  533  (1909);  Doe  ex  dem. 
Alabama  State  Land  Co.  v.  Beck,  108  Ala.  71,  19  South.  802  (1895);  Heck- 
eseher  v.  Cooper,  203  Mo.  278.  101  S.  W.  658  (1907);  Smith  v.  Jones,  103 
Tex.  632,  132  S.  W.  469,  31  L.  R.  A.  (N.  S.)  153  (1910). 


t-^fV-v 


f3^. 


Ch.  1)  POSSESSORY  TITLES  79 

MITCHELL  V.  McSHANE  LUMBER  CO. 

(Circuit  Court  of  Appeals,  Fifth  Circuit,  1915.    220  Fed.  878,  1.36  C.  C.  A.  444.) 

Walker,  Circuit  Judge.  The  testimony  of  the  plaintiff  B.  D./>^ 
Mitchell  was  to  the  effect  that  he  had  lived  on  the  land  in  question (p*^' 
since  1889  and  had  been  asserting  claim  to  it  since  that  time.  He  did 
not  deny  the  making  of  the  contract  with  the  Beaumont  Lumber  Com- 
pany, which  showed  a  lease  by  that  company  to  him  of  the  league 
of  land  which  embraces  the  160  acres  sued  for,  but  explicitly  stated 
that  he  never  relinquished  his  claim  to  the  160  acres,  but  claimed  it 
all  the  time.  The  tendency  of  this  evidence  to  prove  adverse  posses- 
sion  of  the  land  in  question  by  the  plaintiffs  for  the  length  of  time 
required  to  confer  upon  them  the  legal  title  was  not  as  a  matter  of  law 
destroyed  by  the  proof  of  the  execution  by  one  of  them  of  the  lease 
contract  above  mentioned.  'That  contract  evidenced  an  admission  by 
B.  D.  Mitchell  that  he  held  the  land,  not  as  his  own,  but  as  the  tenant  ^^ — 
of  another :  but  that  admission  was  not  conclusive  against  him  in  fa-^^^tlr 
vor  of  the  defendant  in  this  suit.  In  this  suit  it  was  permissible  for  the 
plaintiff  B.  U.  Mitchell  to  contradict  or  explain  away  the  statement  or 
admission  shown  by  his  signing  the  lease  contract,  which  embraced 
a  league  of  land,  and  to  prove  that  he  in  fact  claimed  the  land  sued 
for  as  his  own  all  the  time.  That  instrument  did  not  five-  rise  to  an 
estoppel  upon  him  in  favor  of  the  defendant  to  the  suit,  which  is  a 
stranger  to  that  instrument,  or  debar  him  from  proving^  that  the  fact 
was  other  than  wdiat  the  instrument  indicated  that  it  was. 

"The  rule  against  varying  or  contradicting  writings  by  parol  ob- 
tains only  in  suits  between,  and  is  confined  to  parties  to  the  writings 
and  their  privies,  and  has  no  operation  with  respect  to  tllird  p^rcnng^ 
nor  even  upon  the  parties  tKemselves  in  controversies  with  third  per- 
sons.    *     *     *     But  this  rule  is  confined  in  its  operation  to  the  parties  . 
to  the  written  instrument.     When  it  comes  in  question  collaterally,  in          'irjjCvt%4t^ 
a  suit  to  which  a  third  party,  a  stranger  tO  t^""^  -nrj-ihinprc  I'g  a  jp'-^y,    '^             ^i/v 
neither  party  is  estopped  from  contradicting  it,  or  from  proving  facts *j£k    '^^  ij 


inconsistent  with  it."  Robinson  v.  Moseley,  93  Ala.  70,  9  South.  372 ; 
Myrick  v.  Wallace,  5  Ala.  App.  398,  59  South.  704 ;  Johnson  v.  Port- 
wood,  89  Tex.  235,  34  S.  W.  596,  787;  Barreda  v.  Silsbee,  21  How. 
146,  169,  16  L.  Ed.  86;  Sigua  Iron  Co.  v.  Greene,  88  Fed.  207,  31  C. 
C.  A.  477;    17  Cyc.  750;   Jones  on  Evidence,  §  296. 

The  case  of  Robinson  v.  Bazoon,  79  Tex.  524,  15  S.  W.  585,  which 
is  much  relied  on  by  the  counsel  for  the  defendants  in  error,  was  one 
between  the  parties  to  a  written  contract  relating  to  the  land  which  was 
the  subject  of  the  suit.  The  rule  there  applied  was  the  familiar  one 
which  forbids  either  party  to  such  a  contract  in  a  suit  between  him 
and  another  party  to  it  by  parol  evidence  to  contradict  or  vary  the 
terms  or  effect  of  the  contract.     In  the  opinion  rendered  in  that  case 


so  OEIGINAL  TITLES  (Part  1 

it  was  recosTiized  that  that  rule  would  not  have  applied  in  favor  of 
the  plaintiff  if  he  had  been  a  stranger  to  the  contract.made  by  the  de- 
fendants;   the  court  saying  of  the  case  with  which  it  was  deahng: 

"It  is  not  like  the  case  of  Portis  v.  Hill,  14  Tex.  69,  65  Am.  Dec. 
99,  in  which  it  was  held  that  the  mere  acknowledgrnpn^-  r,f  Htip  jn  a 
third  party  did  not  preclude  the  defendant^;  from  claiming-  that  their 
possession  was  adverse  to  the  plaintiff." 

The  situation  developed  by  the  evidence  was  that  some  of  it — that 
showing  the  making  of  the  lease  contract — tended  to  prove  that-the 
plaintiff's  adverse  holding  was  interrupted  on  the  4fh  dny  nf  ^Tay, 
1898,  while  some  of  it  tended  to  prove  that  the  plaintiffs'  adverseJaoId- 
ing  was  not  terminated  or  interrupted  bv  that  incident.  This  state  of 
the  evidence  made  the  question  in  issue  one  for  the  jury ;  and  the 
court  erred  in  its  ruling  to  the  effect  that  there  was  no  evidence  to 
support  a  finding  in  favor  of  the  plaintiffs. 

The  judgment  of  the  court  below  is  reversed,  and  the  cause  is  re- 
manded,-^ 

28  Adverse  Possession  in  Case  of  Minerals. — When  the  minerals  and 
surface  are  owned  by  the  same  party,  as  is  ordinarily  true,  an  adverse  pos- 
sessiou  of  the  surface  is  al-so  an  adverse  possession  of  the  minerals.  But 
when  the  ownership  or  possession  is  divicfed,  tne  situation  presents  possi- 
bilities of  serious  difficulty.  In  the  latter  case  possession  of  the  surface  by 
the  one  entitled  thereto,  no  matter  how  long  continued,  can  have  no  effect 
upon  the  rights  of  the  party  entitled  to  the  minerals ;  and  no  lenstE^of  non- 
usage"(Wi  atfect  his  rights.  Wallace  v.  Elm  Grove  Coal  Co.,  5S  W.  Va.  449, 
52  S.  E.  4S5.  6  Ann.  Cas.  140  (1905). 

B.  entered  into  adverse  possession  of  land  owned  by  A.  Before  the  statu- 
tory bar  was  complete,  B.  sold  and  conveyed  by  warranty  deed  the  minerals 
to  P.,  who  until  later  made'  no  entry  thereunder.  B.  remained  in  possession 
of  the  surface  beyond  the  statutorv  period,  and  then  died.  P.  then  entered 
into  actual  possession  of  the  minerals  and,  learning  that  A.  made  some  claim 
thereto,  sued  to  quiet  title.  Should  he  maintain  his  suit?  Black  Warrior 
Coal  Co.  V.  West.  170  Ala.  346'  b4  South.  200  (1910),  commented  upon  in  24 
Harv.  Law  Eev.  5S2. 

B.  entered  into  adverse  possession  of  land  owned  by  A.  After  being  in 
possession  for  a  period  sliort  of  the  statutory  period,  B.  ponvpyed  the  land 
to  X..  resei'ving  the  minerals.  X.  went  into  possession ~of  the  pu-TtiPi;^,  nnd 
continued  therein    until    the   tull   running   of  the   sfntute   nf  11j;|^^|;ations'.  _^n 


g 


,.  meantime  no  nnp  wfj?  nnPTj]_fni<r/ti]p  minpv^^  j;  fh^r.^  f.r.nvpYp|^]  j-tjp  min- 
'als  to  P..  who  si^f^  to  nnipt  fiMe._  What  result?  Moore  v.  Empire  Land 
''c,  181  lla.'Wi,  61  isouth.  940  (1913) . 


Ch,  1)  POSSESSORY  TITLES  BI- 

SECTION 5.— CONSTRUCTIVE  ADVERSE  POSSESSION 


JACKSON  ex  dem.  GILLILAND  v.  WOODRUFF. 
(Supreme  Court  of  New  York,  1S23.    1  Cow.  276,  13  Am.  Dec.  525.) 

Ejectment,  for  one  acre  of  land,  at  Salmon  River,  in  Plattsburgh, 
Clinton  county,  called  the  Fairman  lot,  and  for  one  half  acre  of  land 
adjoining  the  same,  on  the  north;  tried  before  his  honor,  Mr.  Jus- 
tice Woodworth.  at  the  Clinton  Circuit.  June,  1821.  Defendant  relied 
upon  plaintiff's  claim  being  barred  by  the  Statute  of  Limitations, 

Woodworth,  J.-"  ^  ^  ^  The  remaining  question  is — ^have  the 
defendants  made  out  an  adverse  possession?  The  actual  occupation 
of  the  premises,  by  the  defendants,  is  less  than  twenty  years,  as  ap- 
pears by  the  testimony  of  Winchell.  He  says  that  Moses  Soper  had 
qlje^pQ(,L.aJ^i^ t^aacres.  not  including  the  premises,  at  Salmon  River 
Village,  in  1797;  that_he.  and  Nathaniel  Piatt,  claimed  the  whole  prop- 
ertv.  while  it  was  in  woods.  The  validity  of  this  claim  will  next  be 
considered. 

In  September.  1794.  Z.  Piatt  executed  a  quit-claim  deed  to  Nathan- 
iel Piatt,  for  7(66  acfes~<Tfiand^  purporting  to  convey,  thereby,  lands 
lytng^befween  the  east  and  south  lines  of  allotted  lands  in  Plattsburgh, 
and  the  line  of  Friswell's  Patent.  On  examining  the  boundaries,  and 
the  map  annexed  to  the  case,  it  will  be  found  not  to  include  any  land ; 
for  there  is  no  gore  between  the  two  patents.  The  description  follows  : 
"Beginning  at  the  distance  of  7  chains,  8  links,  north  from  the  south 
east  comer  of  lot  No.  99,  in  the  second  division  of  Plattsburgh ;  thence 
east,  27  chains  and  50  links,  to  John  Friswell's  patent."  Now,  as  it  has 
been  shown,  that  Friswell's  Patent  joins  on  Plattsburgh,  the  line  can- 
not be  extended  easterly.  If  it  was  so  extended,  it  would  run  on 
lands  included  in  that  patent,  which  is  not  admissible,  under  the 
words  of  the  deed.  The  next  course  is  to  the  north-west  corner  of 
the  patent,  which  must  be  understood  the  true  north-west  corner  of 
Friswell,  as  proved  by  the  plaintiffs ;  thence  east,  in  the  east  bounds 
of  Friswell's  Patent,  until  the  north  line,  to  the  lotted  land  in  Platts- 
burgh, will  include  783  acres,  between  that  line  and  lot  No.  101,  in 
the  second  division  of  Plattsburgh.  By  tracing  these  livp'^,  nn  the  n^^p. 
it  will  be  seen,  that  a  line,  only,  is  given.  No  land  is  includ_ed:  coa- 
sequently,  the  deed  is  a  numty,  ma'smuch  as  nothing  is  granted.  The  >->v 
question,  then,  is,  whether  "a^cTaiiTi  Of '  title,  under  such  an  Tristrument. /-^  j 
and  an  actual  occupancy  of  part,  can  constitute  a  good  adverse  posses-/  ^  / 
sion,  beyond  the  parcel  so  occupied.  \.S^ 

2  9  The  statement  of  facts  is  abbreviated,  and  a  portion  of  the  opinion 
omitted. 

Aig.Pkop. — 6 


i; 


82  ORIGINAL  TITLES  (Part  1 

It  is  well  settled,  that  a  continued  possession,  for  20  years,  under 
pretence  or  claim  of  right,  ripens  into  a  right  of  possession,  which 
will  toll  an  entry  It  has  never  been  considered  necessary,  to  con- 
stitute an  adverse  possession,  that  there  should  be  a  rightful  title. 
Jackson  v.  Wheat,  18  Johns.  44;  Smith  v.  Lorillard,  10  Johns.  356; 
Smith  V.  Burtis,  9  Johns.  180;  Jackson  v.  ElHs,  13  Johns.  120;  Jack- 
son V.  Todd.,  2  Caines,  183.  The  party  who  relies  on  an  adverse  pos- 
session, must,  in  the  language  of  Kent,  Chief  Justice,  in  Jackson  v. 
Schoonmaker,  2  Johns.  234,  show  "a.  substantial  inclosure,  an  actual 
occupancy,  a  pedis  possessio.  which  is  definite,  positive  and  rjniprinnc;^ 
when  that  is  the  only  defence  to  countervail  a  legal  title ;"  and  in  Doe 
V.  Campbell,  10  Johns.  477,  it  is  said,  "adverse  possession  must  be 
marked  by  definite  boundaries  and  be  regularly  continued  down,  to 
render  it  availing."  Brandt  v.  Ogden,  1  Johns.  156.  Tjiere  is  no  doubt- 
that  actual  occupancy,  and  a  claim  of  title,  whether  such  claim  be  by 
deed  or  Otherwise,''  constitute  a  valid  adverse  possession^  to  that  ex- 
tent. But,  when  a  party  claims  to  hold,  adversely,  a  lot  of  land,  by 
proving  actual  occupancy  of  a  part  only^_  his  claini  must  be  under  a 
deed  or  paper  title.  This  distinction  has  been  uniformly  recognized, 
^nd  acted  upon  in  this  Court. 

It  is  on  this  latter  ground,  the  defendants  must  rest,  if  their  posses- 
sion can  avail.  \Theii"  tlefence  is,  that  Z.  Piatt,  in  1794,  conveyed 
783  acres  to  N.  Piatt,  including  the  premises ;  that  the  first  improve- 
ment was  made  in  1794,  under  Piatt,  being  a  small  parcel,  not  exceed- 
ing 2  acres,  which,  together  with  the  premises  in  question,  afterwards 
taken  under  him,  have  been  continued  to  the  time  of  commencing  this 
action.  This  proof  does  not  make  out  an  adverse  possession  to  the 
premises.  Color  of  title,  under  a  deed,  and  occupancy  of  part,  is  suffi- 
cient proof  as  to  a  single  lot;  vet  it  follows,  from  the  doctrine  laid 
down,  that  the  deed,  or  paper  title,  under  which  the  claim  is  made. 
must,  in  the  description,  include  the  premises.  If  the  title  is  bad,  it 
is  of  no  moment ;  but_if  no^aixds  jire^escribec;!,  nothino-  can  pass. 
The  deed  is  a  nullity,  and  never  can  lay  the  foundation  of  a  good  ad- 
verse possession,  beyond  the  actual  improvement.  There  is  no  evi- 
dence here,  to  show  how  far  Piatt's  claim  extended,  unless  resort  is 
had  to  the  deed.  Boundaries,  therefore,  including  the  premises,  were 
indispensable,  in  order  to  give  this  defence  the  semblance  of  plausibility. 
The  defendants  stand  on  the  same  ground  as  if  no  deed  had  been  pro- 
duced ;  and,  then,  the  possession  cannot  extend  beyond  the  place  actu- 
ally occupied.'" 

3  0  "The  courts  have  concurred,  it  is  believed,  without  an  exception,  in  de- 
fining '59l2£9^  title'  to  be  that  which  in  appearance  Is  title,  but  which  in 
iieality  ?sTT?TTtfer'*'^Ir.  Justic^e  baulel,  in  Wright  v.  Mattisou,  IS  How.  50,  56, 
15  L.  Eel.  280  (1S55) . 

While  there  is  a  decided  conflict  of  authority  the  general  rule  seems  clearly 
to  be  that  "color  of'tifIe""reauires  some  sort' of  Avriting!  See  the  many 
cases  collected  in  1  Cyc.  10S3;  2  C.  J.  170.  t^eeT  also,  l«-eolv-LTrw'  Rev.  59. 
So,  also,  the  cases  do  not  agree  as  to  color  of  title  being  provided  by  an  in- 


Ch.  1)  POSSESSORY    TITLES  83 

In  Jackson  ex  dem.  Dervient  v.  Loyd,  decided  October  term,  1820, 
but  not  reported,  it  appeared  that  the  defendant  had  a  deed  for  lot  No. 
4,  but  took  possession  of  lot  No.  5,  adjoining,  believing  it  to  be  his  lot, 
and  claiming  it  as  such.  It  was  held,  that  the  defendant  could  not 
establish  an  adverse  possession,  to  the  whole  lot,  by  the  actual  im- 
provement of  a  part,  because  no  part  of  No.  5,  was  included  in 
the  deed. 

But,  if  the  deed  had  been  perfect  in  the  description,  and  included  783 
acres  of  Friswell's  Patent,  the  occupancy  of  a  part  would  not  make  out 
an  adverse  possession  to  the  whole  quantity  conveyed.  The  doctrine 
of  adverse  possession^  applied  to  a  farm,  or  sing^le  lot  of  land,  is,  in 
itself,  reasonable  and  ji^st.  In  the  first  place,  the  quantity  of  land 
is^small.  "Possessions,  thus  taken,  under  a  claim  of  title,  are,  general- 
ly, for  the  purpose  of  cultivation  and  permanent  improvement.  It  is, 
generally,  necessary  to  reserve  a  part  for  wood  land.  Good  husbandry 
forbids  the  actual  improvement  of  the  whole.  The  possessions  are, 
usually,  in  the  neighborhood  of  others;  the  boundaries  are  marked 
and  defined.  Frequent  acts  of  ownership,  in  parts  not  cultivated,  give 
notoriety  to  the  possession.  Under  such  circumstances  there  is  but 
little  danger  that  a  possession  of  twenty  year';  will  he  matured  ap-ainst 
the  right  owner ;  if  it  occasionally  happens,  it  will  arise  from  a  want 
of  vigilance  and  care,  in  him  who  has  title.  It  is  believed,  that  no  well 
founded  complaint  can  be  urged  against  the  operation  of  the  principle ; 
but  the  attempt  to  apply  the  same  rule  to  cases  where  a  large  tract  is 
conveyed,  would  be  mischievous  indeed.  Suppose  a  patent  granted 
to  A,  for  2000  acres;  B,  without  title,  conveys  1000  of  the  tract  to 
C,  who  enters  under  the  deed,  claiming  title,  and  improves  one  acre 
only ;  this  inconsiderable  improvement  may  not  be  Icnown  to  the  pro- 
prietor, or  if  known,  is  disregarded  for  twenty  years.  Could  it  be 
gravely  urged,  that  here  was  a  good  adverse  possession  to  the  one 
thousand  acres?  If  it  could,  I  perceive  no  reason  why  the  deed  from 
B  to  C  might  not  include  the  whole  patent,  and  after  the  lapse  of  twen- 
ty years,  equally  divest  the  patentee's  title  to  the  whole;  for  there 
would  exist  an  actual  possession  of  one  acre,  with  a  claim  of  title 
to  all  the  land  comprised  in  the  patent.  No  such  doctrine  was  ever 
intended  to  be  sanctioned  by  the  Court.  It  may,  therefore,  be  safely 
affirmed,  [that  a  small  possession,  taken  under  the  deed  to  N.  Piatt, 

strument  voifl  on  its  face.  GeBerally,  where  thp  Inst.rnment.  though  void  on 
its  face,  would  seem  to  the  ordinary  layman  to  be  good  there  is  color^  See 
the  cases  collected  in  1  Cyc.  1087;  2  C.  J.  ITtj,  177.  As  to  the  necessity  that 
the  claimant  under  the  color  of  title  shall  have  acted  in  good  faith  in  tak- 
ing the  deed  or  other  instrument,  see  Gregg  v.  Sayre,  8  Pet.  253,  8  L.  Ed.  932 
(1834) ;  Foulke  v.  Bond,  41  N.  J.  Law,  527  (1879) ;  Lampman  v.  Van  Alstyne, 
94  Wis.  417,  69  N.  W.  171  (1896) :  State  v.  King  (W.  Va.)  87  S.  E.  170  (1915). 
Color  of  title  may  also  be  of  importance  in  other  respects  than  construc- 
tive adverse  possession.  Statutes  of  limitations  nnt  nncnmmonly  nrnviflp  fnr 
a  different  pprinri  ^here  there  is  adverse  possession  under  color  of  title. 
T'he  state  statutes  should  De  consuiiea:  ~ 


■84 


ORIGINAL   TITLES 


(Part  1 


cannot,  under  any  circumstances,  be  a  valid  possession  of  the  whole 
783  acres,  but  is  limited  to  the  parcel  improved.  If  the  doctrine  con- 
tended for,  prevails,  it  would  sanction  this  manifest  absurdity,  that  a 
possession  under  Piatt's  deed,  which  conveyed  no  title,  would,  as  to 
its  legal  effect,  be  more  beneficial,  than  a  possession  taken  under  the 
proprietors  of  Friswell's  Patent,  where  there  is  not  only  title,  but  a 
good  constructive  possession,  in  consequence  of  the  grant,  and  actual 
occupancy  and  improvement  of  a  part.  It  cannot  be  useful  to  pur- 
sue the  subject  farther.^^ 

I  am  of  opinion  that  the  plaintiff  js  entitled  ^^  jurlprmpnt,  fpr_anjin- 
divided  fourth  part  of  the  prernisgiT 


BAILEY  v.  CARLETON. 
(Supreme  Court  of  New  Hampshire,  1841.    12  N.  H.  9,  37  Am.  Dec.  190.) 

Writ  of  entry,  to  recover  two  tracts  of  land  in  the  lower  village  in 
Bath,  one  of  said  tracts  being  ten  rods  in  length,  and  the  other  being 
four  square  rods  of  land,  situated  immediately  gnnt]-]  ^f  ^r\c\  adjninlnpr 
th^  fir.st  tract;  both  constituting  a  narrow  strip  of  land,  situated  be- 
twixt the  main  road  through  Bath  village,  and  the  xA.nionoosuck  river. 

The  tract  of  land  first  described,  and  a  house  lot  opposite  to  the 
same,  on  the  other  side  of  the  road,  were  conveyed  to  Ampf^  To'^'^^"  hv 
Moses  P.  Payson,  by  two  several,  deeds,  executed  on  the  27th  of 
March,  1807 :  and  the  tract  containing  four  square  rods  was  conveyed 
by  said  Payson,  in  November,  1807,  to  Buxton  &  Blake,  who  sold  to 
one  Morrison,  and,  in  1810,  Morrison  sold  to  said  Town. 

In  February.  181.3.  Amos  Town  sold  the  three  tracts  of  land  to  his 
brother,  Solomon  Town,  and  in  April,  1^1^,  Solomon  Town  re-con- 
veved  the  house  lot  opposite  the  demanded  premises,  to  Amos  Town, 
but  did  not  include,  in  the  description,  the  strip  of  land  opposite,  and 
now  in  controversy. 

October  19th,  1815,  Amos  Town  convpvpd  the  aforesaid  three  sev- 
eral tracts.  g;-iving-  separate  descriptions  of  each  tract,  to  Ebenezer 
Carleton.  _and   subsequently   Carleton's   title   was    conveyed   to    these 

Solc^mon  Town,  in  Tune  1830.  conveved  the  demanded  premises  to 
one  John  Welsh.    Welsh,  in  February,  1837.  conveyed  to  the  plaj^ff, 

31  Chandler  v.  Spear,  22  Vt.  388  (1850);  Thompson  v.  Burhans,  61  N.  Y. 
52  (1874) ;  Louisville  &  N.  R.  Co.  v.  Gulf  of  Mexico  Land  &  Improvement 
Co.,  82  Miss.  ISO,  33  South.  845,  100  Am.  St.  Rop.  627  (1903),  ace.  Hick^  v. 
yf,^gr,,nr,  ;>fL  ^ni  TOO  !^^  Am.  Dec.  103  (1864);  Marietta  Fertilizer  Co.  v.  lilair. 
iii  Am.  f>\>i,  Sff'^outh.  131  (1911),  contra.  See,  also,  Ellicott  v.  Pearl,  10 
Pet.  412,  9  L.  Ed.  475  ri836);  Kentucky  Coal,  etc.,  Co.  v.  Kentuckv  Union  Co. 
(D.  C.)  214  Fed.  590,  629  (1914).  The  matter  mav  be  affected  bv  statute.  See 
Stevens  v.  Martin,  168  Mo.  407,  68  S.  W.  347  (1902).  The  state  statutes 
should  be  consulted. 


Ch.  1)  POSSESSORY  TITLES  85 

and  this  suit  was  brought  for  the  recovery  of  the  demanded  prem- 
ises, the  15th  of  April,  1837. 

.  It  appeared  that  Ebenezer  Carleton,  on  his  purchase  of  Amos  Town 
in  October,  1815,  entered  into  possession  of  the  house  lot  named  in  his 
deed,  and  lived  on  and  occupied  the  same  for'many  years,  until  it  was 
conveyed  to  the  defendant^  E.  Carleton.  Jr. 

In  1821,  Ebenezer  Carleton  caused  a  small  building  to  be  removed 
on  to  the  land  in  controversy,  and  from  that  time  to  the  present  it  has 
remained  there,  occupied  by  tenants  under  him  and  these  defendants. 

The  defendants  claimed  to  hold  the  land  by  virtue  of  peaceable  and 
undistQrbed  possession,  by  themselves  and  their  grantor,  for  a  period 
of  twenty  years,  It  appeared  that  until  1821  no  building  had  been; 
placed  upon  the  premises,  and  that  the  premises  had  not  been  inclosed 
in  any  manner;  that  from  1815  to  1821,  and  since,  Ebenezer  Carleton 
had  been  in  the  habit,  occasionally,  of  leaving  carts,  ploughs  and  farm- 
ing utensils  upon  this  land,  and  also  of  leaving  lumber  upon  it.  Evi- 
dence was  offered  to  show  that  it  had  been  a  common  practice,  by 
teamsters  and  owners  of  lumber,  for  thirty  or  forty  years,  to  lay  lum- 
ber upon  that  side  of  the  road,  in  Bath  village,  upon  this  tract,  and 
above  and  below  it,  and  that  said  Carleton  and  other  individuals  had 
been  in  the  habit  of  laying  lumber  along  the  river  bank  in  this  man- 
ner. 

It  was  contended,  by  the  defendants'  rnnnsel  that  Ebenezer  Carleton 
having  entered  upon  the  house  lot,  claiming  title  to  and  occupying  the 
same,  such  entry  extended  tn  the  rnnti^nnns  tmrtc  Hpsrn'hpr^  I'n  fhf^ 
same  deed._and  that  entry  and  occupation  of  one  of  the  tracts  extended 
to  the  whole,  in  the  same  manner  as  though  they  had  been  conveyed 
in  one  description — that  the  defendants'  grantor  having  entered  upon 
and  disseized  the  plaintiff's  grantor,  October  19th,  1815,  and  the 
plaintiff  never  having  reentered  before  action  brought,  he  had  no  legal 
seizin  in  the  demanded  premises  within  twenty  years  next  before  the 
commencement  of  his  action,  and  his  suit,  therefore,  could  not  be 
maintained — and  that  the  laying  of  lumber  on  the  demanded  premises, 
by  persons  claiming  no  right  thereto,  would  not  affect  the  exclusive 
character  of  the  defendant's  adverse  possession. 

The  court  instructed  the  jury  that  an  entry  upon,  and  omipatinn  jdj 
one  of  the  tracts  conveyed,  would  not  extend  to  the  other  tracts  de- 
scribed in  the  deed,  so^as  to  give  a  title  to  them  bv  possession — that 
entry  upon,  and  occupation  of,  any  portion  of  the  demanded  premises 
would  extend  to  the  whole  tract  entered  upon — that  it  was  not  essen- 
tial that  any  portion  of  the  land  should  be  inclosed,  in  order  to  con- 
stitute an  adverse  possession — that  such  possession  might  be  acquired 
by  the  laying  of  lumber  upon  said  tract,  or  otherwise  occupying  it  as 
a  place  of  deposit  for  farming  utensils,  &c.,  but  that  such  possession 
must  be  an  open,  ^visible  possession,  such  as  would  give  reasonable  no- 
tice of  such  adverse  possession,  to  the  owner. 


86  ORIGINAL  TITLES  (Part  1 

A  verdict  was  rendered  for  the  plaintiff,  and  the  defendants  moved 
to  set  the  same  aside,  for  misdirection. 

Parker,  C.  J.  The  genera[  rule^that  where  a  party  having-  color  of 
title  enters  into  the  land  conveyed,  he  is  presumed  to  enter  according 
to  his  title,  and  thereby  gains  a  constructive  possession  of  the  whole 
land  embraced  in  his  deed,  seems  to  be  settled  by  the  current  of  author- 
ities. Riley  v.  Jameson,  3  N.  H.  27,  14  Am.  Dec.  325  ;  Lund  v.  Parker, 
3  N.  H,  49,  and  cases  cited. 

And  such  entry  may  operate  as  a  disseizin  of  the  whole  tract ;  and 
the  possession  under  it,  continued  for  the  term  of  twenty  years,  may 
be  deemed  an  adverse  possession,  which  will  bar  the  entry  of  the  own- 
er after  that  lapse  of  time.  3  N.  H.  49;  Jackson  v.  Ellis,  13  Johns. 
(N.  Y.)  118;  Jackson  v.  Smith,  13  Johns.  (N.  Y.)  406;  Jackson  v. 
Newton,  18  Johns.  (N.  Y.)  355. 

Exceptions  have  been  suggested  to  the  rule  in  some  cases.  One  is, 
vhere  a  large  tract  of  land  is  embraced  in  the  deed,  and  a  small  part 
only  has  been  improved.  Jackson  v.  Woodruff,  1  Cow.  (N.  Y.)  276,  13 
Am.  Dec.  525 ;  Jackson  v.  Vermilyea,  6  Cow.  (N.  Y.)  677.  Another, 
where  the  deed  under  which  the  claim  is  made  includes  a  tract  greater 
than  is  necessary  for  the  purpose  of  cultivation,  or  ordinary  occupan- 
cy.   Jackson  v.  Oltz,  8  Wend.  (N.  Y.)  440. 

These  exceptions  seem  not  to  be  very  definite  in  their  application, 
for  lots,  like  other  things,  are  large  or  small  by  comparison,  and  a 
tract  which  would  be  much  too  large  for  cultivation  by  one,  would  not 
suffice  for  another.  But  they  serve  to  show  the  principle  upon  which 
the  rule  is  founded.  It  is,  that  the  entrv  anri  pn<;c;p<;c;inn  of  the  party 
is  notice  to  the  owner  of  a  claim  asserted  to  the  land:  that  the  limits 
of  such  claim  appear  from  the  deed ;  and  that  if  the  owner  for  twenty 
years  after  such  entry,  and  after  notice,  by  means  of  the  possession, 
that  an  adverse  claim  exists,  asserts  no  rights^  he  mav  wpH  b""  prp<^nmpd 
to  have  made  some  jQ-rant  or  convevance.  co-extensive  with  the  limits 
of  the  claim  set  up ;  or  that,  after  such  lapse  of  time,  a  possession  un- 
der such  circumstances,  ought  to  be  quieted,. 

There  should  be  something  more  than  the  deed  itself,  and  a  mere 
entry  under  it — something  from  which  a  presumption  of  actual  notice 
may  reasonably  arise.  It  is  not  necessary  to  show  actna]  Irnnw1pr1crp_r>f 
thej]eed.  Acts  of  Ownership,  raising  a  reasonable.  presuni2tii)n  that 
the  owner,  with  knowledge  of  them,  must  have  understood  that  there 
was  a  claim  of  title,  may  be  held  to  be  constructive  notice,  that  is,  con- 
clusive evidence  of  notice.  Rogers  v.  Jones,  8  N.  H.  264.  The  owner 
may  well  be  charged  with  knowledge  of  what  is  openly  done  on  his 
land,  and  of  a  character  to  attract  his  attention.  The  presumption  of 
notice  adse-s.  from  the  ncrupation,  long  continued:  and  the  notice  of 
the  claim  may  well  be  presumed,  as  far  as  the  occupation  indicates  that 


Ch.  1)  POSSESSOEY  TITLES  87 

a  claim  exists,  and  the  deed,  or  color  of  title,  serve  to  define  specifically 
the  boundaries  of  the  claim  or  possession,  jf  the  occupation  is  not  oi. 
a  character  to  indicate  a  claim  which  may  be  co-extensive  witli  the., 
limits  of  tlic  deed,  llien  the  principle  that  the  party  is  presumed  to 
^nter  adversely  according  to  his  title,  has  no  sound  application,  and 
the  adverse  possession  may  be  limited  to  the  actual  occupation. 

Thus  cutting  wood  and  timber,  connected  with  permanent  improve- 
ments, may  well  furnish  evidence  of  notice  that  the  claim  of  title  ex- 
tends beyond  the  permanent  improvements,  and  the  deed  be  admitted 
to  define  the  precise  limits  of  the  claim  and  possession,  provided  the 
cutting  was  of  a  character  to  indicate  that  the  claim  extended,  or  might 
extend,  to  the  lines  of  the  deed.  It  might,  at  least,  well  indicate  a 
claim  to  the  whole  of  a  tract  allotted  for  sale  and  settlement,  of  which 
the  party  was  improving  part,  unless  there  was  something  to  limit  the 
presumption.]  But  no  presumption  of  a  claim,  and  of  color  of  title 
beyond  the  actual  occupation,  could  arise  respecting  other  lots  than 
that  of  which  the  party  was  in  possession.  And  where  the  possession 
was  in  a  township,  or  other  large  tract  of  land,  which  had  never  been 
divided  into  lots  for  settlement,  no  particular  claim,  beyond  the  actual 
occupation,  would  be  indicated,  and  of  course  no  notice  of  any  such 
claim  of  title  should  be  presumed.  Jackson  v.  Richards,  6  Cow.  (N. 
Y.)  617;   Sharp  v.  Brandow,  15  Wend.  (N.  Y.)  597. 

If  the  possession  was  not  of  a  character  to  indicate  ownership,  and 
to  give  notice  to  the  owners  of  an  adverse  claim,  although  the  grantee 
might  be  held  to  be  in  possession  according  to  his  title,  in  a  contro- 
versy with  one  who  should  make  a  subsequent  entry  without  right,  his 
possession  ought  not  to  be  held  adverse  to  the  true  owner,  to  the  ex- 
tent of  his  deed,  merely  by  reason  of  the  deed  itself,  even  if  recorded, 
nor  by  any  entry  under  it.  There  are  several  cases  which  tend  to  sus- 
tain this  view  of  the  principle.  Poignard  v.  Smith,  6  Pick.  (Mass.)  172, 
176;  Alden  V.  Gilmore,  13  Me.  178;  Prop'rs  of  Kennebeck  Purchase 
V.  Springer,  4  Mass.  416,  3  Am.  Dec.  227;  Hapgood  v.  Burt,  4  Vt. 
155;  Ewing  v.  Burnet,  11  Pet.  41,  9  L.  Ed.  624;  Little  v.  Megquier,  2 
Greenl.  (Me.)  176. 

We  are  of  opinion  that  the  rule  cannot  apply  to  a  case  where  a  party, 
having  a  deed  which  embraces  land  to  which  his  grantor  had  good 
title,  and  other  land  to  which  he  had  no  right,  enters  into  and  posses- 
ses that  portion  of  the  land  which  his  grantor  ow^ned,  but  makes  no 
entry  into  that  part  which  he  could  not  lawfully  convey.  There  is  no 
notice  in  such  case  to  the  owner  of  the  land  thus  embraced  in  the  deed, 
and  no  possession  which  can  be  deemed  adverse  to  him.  .  If  it  may  be 
said  that  the  color  of  title  gives  such  a  constructive  seizin  and  posses- 
sion that  the  grantee  could  maintain  trespass  against  any  person  who 
did  not  show  a  better  right,  (that  is,  a  title,  or  prior  possession,)  there 
is  nothmg  in  the  nature  of  it  which  can  give  it  the  character  of  a  dis- 


v 


88  ORIGINAL,  TITLES  (Part  1 

seizin,  or  possession  adverse  to  the  true  owner,  so  as  to  bind  him.  JEox 
that  purpose,  there  must  beactualoo^s^OiL  of  some  portion  oMhe 
land  of  such  owner,  and  that  of  a  nature  to  give  notice  of  an  adverse 
claim*  ,,. 

It  is  not  necessary  to  settle  whether  an  entry  into  an  enclosed  lot, 
under  a  deed  purporting  to  convey  unenclosed  lands  adjoining,  belong- 
ing to  the  same  person,  would  operate  as  a  disseizin  of  the  latter. 
Where  two  separate  lots  inr.lyded  in  thp  <;pj7i^  de^d.  belong  to  different 
owners,  an  entry  into  one  can  in  no  way  operate  as  a  disseizin  in  rela- 
tion to  the  other.  ~     "" 

The  entry  into  the  house  lot,  therefore,  to  which  Amos  Town,  who 
'^conveyed,  had  title,  was  no  disseizin  of  Solomon  Town,  who  had  title 
to  the  lot  unenclosed,  on  the  other  side  of  the  road, 
y^-j  ^    The  next  question  is,  what  entryjnto  the  land  itself  is  s_ufficient. 

Here  was  an  entry  in  1821,  upon  the  tract  in  dispute,  and  a  posses- 
sion, by  placing  a  building  on  it,  by  Ebenezer  Carleton,  the  grantor  of 
the  defendants.  This  was,  without  doubt,  an  act  of  ownership.  The 
character  of  it  was  adverse  to  the  title  of  Solomon  Town,  and  it  was 
of  a  nature  to  give  notice  that  Carleton  claimed  title  to  that  land. 

But  the  possession  before  that  time  was  of  a  more  ambiguous  char- 
acter. 

Ebenezer  Carleton.  to  whom  the  convevance  was  made  in  1815.J3iade 
no  entry  or  use  of  the  lot  up  tn  1821,  except  bv  Ipyi^S  ^'^^bpr  upon  \f 
or  placing  farming  utensils  there.  Those  acts  by  one  having  a  deed, 
if  nothing  further  was  shown,  might  be  held  to  be  a  sufficient  entry, 
and  possession  to  operate  as  a  disseizin  of  Solomon  Town.  But  it  ap- 
peared that  so  far  as  the  laying  of  lumber  on  the  lot  was  concerned, 
this  was  no  more  than  Carleton,  and  divers  other  persons,  had  been 
in  the  habit  of  doino-  hefor^,  and  thf|<-  nfhpr<;  rnntiTinff]  to  do  the  same 
afterwards.  Those  acts,  prior  to  1815,  were  done  by  him,  and  otliers. 
without  claim  of  title,  and  of  course  in  subservience  to.  thetitleofTTie 


true  owner.     IT  not  acknowledged  trespasses,  they  must  have  been 
under  a  license  from  Solomon  Town.    The  same  acts  continued  after 
x/  .  a _ deed  of  other  lands,  by  a  person  having  good  title  to  thn-^e  lands 

could  not  operate  as  any  notice  to  the  owner  of  this  tract,  that  a  deed 
had  been  made  covering  his  land  also,  and  that  there  was  an  occupation 
under  that  deed,  or  under  any  claim  of  right  to  occupy  adversely  to 
him.  The  additional  act  of  leaving  farming  tools  on  the  lands  does  not 
seem  to  change  the  character  of  the  possession. 

It  was  not,  therefore,  until  1821,  when  the  building  was  removed  on 
to  the  land,  that  any  entry  was  made  upon  it  by  Carleton,  from  which 
Solomon  Town,  with  knowledge  of  the  entry,  should  have  understood 
that  CarTeton  made  any  claim  to  the  ownersnip  of  the  lot:  and  until 
that  time,  therefore,  there  was  nothing  from  which  an  ouster  can  be 
inferred,  and  no  possession  by  him  that  can  be  deemed  adverse,  except 


€h.  1)  POSSESSORY  TITLES  89 

at  the  election  of  the  owner.     Magoun  v.  Lapham,  21  Pick.  (Mass.) 
140;  Thomas  v.  Patten,  13  Me.  336. 
Judgment  for  the  plaintiff.^^ 


RALPH  V.  BAYLEY. 

(Supreme  Court  of  Vermont,  1839.     11  Vt.  521.) 

Trespass  for  breaking  and  entering  plaintiff's  close,  being  lot  No. 
62,  in  the  first  division  of  lands  in  Warren,  and  cutting  timber  thereon. 

Plea,  not  guilty,  with  notice  of  special  matter.    Issue  to  the  country. 

Upon  the  trial  in  the  county  court,  the  plaintifi^  gave  in  evidence  a 
deed  of  the  lot  in  question  from  Smith,  Booth  &  Ufford  to  the  plain- 
tiff, dated  June  10th,  1836,  and  recorded  in  September,  1836. 

The  plaintiff  also  introduced  testimony  tending  to  prove  that  in  July, 
1837,  he  cornmenced  clearing  ten  acres  of  said  lot :  that  in  the  summer 
of  that  year  he  chopped  down  the  trees  growinp;'  on  about  three  acres 
of  the  land,  and  that  defendant,  in  January,  1838.  entered  upon  the  lot 
arid  cut  down  and  carried  away  a  spruce  tree. 

The  defend ai^t.^  on  his  part,  gave  in  evidence  a  deed  of  the  lot  in 
question,  together  with  two  other  lots  of  land  lying  in  Warren,  from 
one  Daniel  Spencer  to  Araunah  Spear,  dated  July  18th,  1836,  and  re- 
corded in  August,  1836,  and  introduced  testimony  tending  to  prove 
that  {^ppar.  immediately  after  the  recording  of  his  deed  and  in  the  same 
month,  commenced  choj)ping  on__said_lot,  and  cut  down  the  timber 
growing  on  about  one  acre  of  land:  that  in  August  or  September, 
1837,  he  caused  the  acre  last  mentioned  to  be  cleared,  and  that  the  de- 
fendant entered  upon  the  lot,  by  the  direction  of  Spear,  and  cut  the 
spruce  tree  before  mentioned. 

The  plaintiff  then  introduced  testimony  tending  to  prove  that  the 
land  cleared  by  Spear  was  not  a  part  of  lot  No.  62. 

It  was  conceded  that  the  tree  cut  by  the  defendant,  was  not  upon 
tliat  portion  of  the  lot  enclosed  by,  or  in  the  actual  possession  of  Spear. 

The  county  court  instructed  the  jury,  that,  if  the  plaintiff  held  a  deed 
of  lot  No.  62,  made  an  entry  upon,  and  took  possession  of  the  lot,  in 
the  manner  attempted  to  be  proved,  and  the  defendant  entered  thereon 
and  cut  the  tree  in  the  manner  complained  of,  the  plaintiff  Aynnid  be 
entitled  to  recover  against  the  defendant^  if  he  y^as  a  mere  stranger, 
aifd  did  not  act  by  the  direction  or  consent  of  Spear^  although,  in  fact. 
Spear  made  the  first  entry  on  the  lot. 


3  2  Kentucky  Coal  &  Timber  Development  Co.  v.  Kentucky  Union  Co.  (D.  C.) 
214  Fed.  590  (1914),  ace. 

5ee  Hornblower  v.  Banton,  103  Me.  375,  69  Atl.  568,  125  Am.  St.  Rep.  30<^ 
(1907). 


90  ORIGINAL  TITLES  (Part  1 

The  jury  returned  their  verdict  for  the  plaintiff.  The  defendant 
excepted  to  the  charge  of  the  court. 

Other  questions  were  presented  in  the  bill  of  exceptions,  but,  as 
they  were  not  decided  by  this  court,  they  are  here  omitted. 

The  opinion  of  the  court  was  delivered  by 

Bennett,  J.  We  think  there  was  error  in  the  charge  of  the  court, 
as  applied  to  this  case.  The  case  shows  that  Araunah  Spear  received 
a  deed  of  the  lot  in  question  from  Daniel  Spencer,  in  July,  1836,  and 
the  deed  was  put  on  record  in  August  following,  and  that  the  said 
Araunah  immediately  entered  into  possession,  claiming  title  to  the 
whole  lot  under  his  deed,  and  commenced  a  clearing  and  chopped  over 
about  one  acre,  and  that,  in  August  or  September,  1837,  he  caused  the 
clearing  of  this  acre  to  be  completed.  It  appears,  also,  that  evidence 
was  given  to  the  jury  tending  to  prove  the  defendant's  acts  tn  have 
been  i-.nnp  iniHer  Sppar 

The  effect  of  this  evidence  is  to  extend  the  possession  of  Spear,  by 
CO nist ruction,  to  the  whole  lot,  as  described  in  his  deed.  The  charge 
of  the  court  assumes,  that  if  the  jury  do  not  find  that  the  defendant  act- 
ed under  Spear,  the  plaintiff  is  entitled  to  recover,  though  they  should 
find  Spear's  possession  prior  to  any  possession  of  the  plaintiff,  it  being 
an  admitted  point  that  the  chopping  of  the  defendant  was  not  on  that 
portion  of  the  lot  cleared  by  Spear. 

The  plaintiff  is  a  stranger  as  to  the  title,  and  his  possession  to  any 
part  of  the  lot  is  subsequent  to  the  possession  of  Spear,  and  it  does  not 
appear  that  the  alleged  trespass  of  the  defendant  was  committed  upon 
any  part  of  the  lot  in  the  actual  possession  of  the  plamtitt.  Spear  hav- 
ing had  the  hrst  actual  possession  of  a  part,  and  constructive  possession 
of  the  whole  lot,  there  can  be  no  subsequent  conflicting  possession  ex- 
tended by  construction  beyond  the  limits  of  the  actual  adverse  posses- 
sion. Crowell  V.  Beebe,  10  Vt.  33,  33  Am.  Dec.  172;  Barr  v.  Gratz, 
4  Wheat.  213,  4  L.  Ed.  553. 

It  is,  then,  clear  that  the  plaintiffs  could  not  maintain  this  action 
agamst  Spear,  and  can  he  against  a  stranger.^  .We  thmk  jiot.  The 
doctrine  is  well  settled,  that,  in  ejectment,  the  defendant  may  set  up, 
as  a  defense,  an  outstanding  title  still  subsisting  in  a  stranger,  though 
he  in  no  way  connects  himself  with  such  title.  In  the  present  case,  as 
between  the  plaintiff'  and  Spear,  the  latter  has^fhe  better  title,  tha^is, 
the  first  available  possession  of  that^art  of  the  Idf'wiiere  the  trespass 
was  committed,  and  all  ac^jof  the  plaintiff  there~woHId  be  a  trespass 
agamst  Spear,  If  the""  plaintiff  is  permitted  to  recover  against  "a'  slran- 
ger,  for  tlie'trespass,  it  can  be  no  bar  to  a  second  recovery,  by  Spear 
for  the  same  trespass,  and  we  see  no  good  reason  why  a  stranger,  when 
sued  by  the  plaintiff,  may  not  set  up  a  prior  possession  in  Spear.  It, 
in  effect,  is  the  same  principle  that  permits  a  defendant  in  ejectment  to 
set  up  an  outstanding  title  in  a  third  person.    There  is  no  occasion  for 


Ch.  1)  POSSESSORY   TITLES  91 

deciding  any  other  question,  reserved  by  the  bill  of  exceptions,  as  the 
judgment  below  must,  on  this  point,  be  reversed.  A  new  trial  is,  there- 
fore, granted.^  ^ 


SECTION  6.— DISABILITIES 


DOE  V.  JESSON. 

(Court  of  King's  Bench,  1805.     6  East,  80.) 

This  was  an  ejectment  for  a  house  and  a  small  parcel  of  land,  which 
was  tried  betore  Rooke,  J.,  at  the  last  assizes  at  Northampton;  and 
the  principal  question  was,  whether  the  action  were  brougnt  in  time 
withm  the  2d  clause_of_exceptions  in  the  statute  of  limitations,  21  Jac^ 
I,  c.  16.  The  person  last  seised  of  the  premises,  from  whom  the  les- 
sors of  the  plaintiff  claimed,  was  one  Thomas  Jesson,  on  whose  death 
in  the  year  1777,  David,  his  elder  brother,  took  possession  of  them,  and 
transmitted  the  possession  to  the  defendant  his  grandson.  Thomas 
Jesson  left  a  son  John  and  a  daughter  Frances  him  surviving.  John 
was  baptized  in  1767,  and  after  the  death  of  his  father,  being  then 
about  10  years  of  age,  was  put  out  apprentice  to  the  sea  service  by  the 
parish,  and  was  seen  by  a  witness-  on  his  return  from  his  first  voyage 

33  "The  complaint  Is  made  that  instruction  8  was  refused  plaintiffs.  It 
reads  as  follows:  'If  the  jury  l»elieve  from  the  evidence  thsit  S.  I.  Robinson 
under  his  patent  entered  upon  the  land  embraced  therein  and  took  possession 
of  the  same  by  himself  or  his  tenant,  then  he  was  in  possession  of  the  whole 
of  said  tract  of  hmd  not  actually  in  the  possession  of  some  otber  party;  and 
if  you  believe  that  sucli  possession  has  continued  for  more  than  ten  years  by 
the  said  Robinson  or  his  tenants,  then  his  possession  under  his  patent  gave 
him  a  perfect  title  to  the  land  actually  in  his  possession,  notwithstanding  you 
may  believe  some  part  of  his  survey  may  have  been  overlapped  by  an  older 
patent.'  This  would  suggest  to  the  jury  the  question  of  an  interlock  of  the 
defendant's  older  patent  with  plaintiffs'  younger  patent,  and,  if  there  was, 
then  plaintiffs  would  have  the  benefit  of  possession  extending  over  on  the 
defendant's  land.  But  there  could  not  be  such  interlock  when  the  plaintiffs' 
patent  called  for  defendant's  older  patent,  and  to  run  with  its  lines.  Robin- 
sou  V.  Sheets*  63  W.  Va.  .394,  61  S.  E.  347  (190S).  This  tended  to  give  Robin- 
son the  benefit  of  possession  over  his  bounds.  But  there  is  other  objection 
to  the  instruction.  Suppose  an  interlock  between  senior  and  junior  grants. 
This  instruction  would  say  that  a  possession  anywhere  on  the  land  of  the 
junior  grant  would  take  in  land  of  the  interlock,  if  possession  under  the 
senior  is  not  within  the  interlock.  The  junior,  though  in  possession  within 
his  bounds,  cannot  be  accounted  in  possession  of  the  interlock,  unless  he 
has  actual  physical  possession  in  it.  Constructive  actual  possession  arising 
from  possession  elsewhere  will  not  do.  Wilson  v.  Braden,  48  W.  Va.  193,  36 
S.  E.  367  (1900).  I  see  that  it  was  discussed  and  disapproved  in  former  de- 
cision. Robinson  v.  Lowe,  50  W.  Va.  79,  40  S.  E.  454  (1901)."  Brannon,  J.,  in 
Robinson  v.  Lovs-e,  66  W.  Va.  665,  66  S.  E.  1001  (1910). 

As  to  tacking  successive  constructive  adverse  possessions,  see  Simpson  v. 
Downing  23  Wend.  (N.  Y.)  316  (TS40).~  '      '     "~  "  "^ 


92  ORIGINAL  TITLES  (Part  1 

about  a  year  after  the  father's  death ;  soon  after  which  he  went  to  sea 
again,  and  had  not  been  heard  of  since,  and  was  beheved  to  be  dead. 
Frances  the  daughter,  one  of  the  lessors  of  the  plaintiff,  was  baptized 
on  the  21st  of  May,  1771,  and  afterwards  married  George  the  other 
lessor. 

It  was  contended  at  the  trial  by  the  defendant's  counsel  that  the 
ejectment  was  out  of  time;  for  it  was  uncertain  when  John,  the  son  of 
Thomas  the  ancestor  last  seised,  died,  and  that  the  20  years  given  by 
the  statute  began  to  run  immediately  on  the  death  of  Thomas  in  1777, 
and  consequently  expired  in  1797;  or  that  if  the  statute  favoured 
Frances  the  daughter  till  10  years  after  the  disability  of  her  infancy 
was  removed,  at  any  rate  as  she  was  of  full  age  in  1792,  she  ought  to 
have  brought  her  ejectment  in  1802,  and  consequently  this  ejectment 
brought  in  1804  was  too  late.  On  the  other  hand,  it  was  contended  by 
the  plaintiff's  counsel  that  supposing  John  to  have  died  abroad,  the 
presumption  of  his  death  could  not  arise  till  seven  years  after  he  v/as 
last  seen  in  England  previous  to  his  going  to  sea,  which  would  not  be 
till  1785  or  1786,  till  when  the  right  of  entry  of  the  lessor  Frances  did 
not  accrue;  and  that  she  had  20  years  in  which  to  bring  her  ejectment 
after  that  time;  the  statute  having  never  begun  to  run  by  reason  of 
the  continuing  di^'ability,  and  consequently  that  this  action  was  well 
brought. 

The  learned  Judge  left  it  to  the  jury  to  say  when  and  where  John 
died ;  and  observed,  that  it  was  fair  to  presume  he  had  not  died  in 
England,  as  none  of  his  family  ever"  heard  of  his  death.  And  as  to  the 
time,  that  it  was  incumbent  on  the  jury  to  find  the  fact  as  well  as  they 
could  under  the  doubt  and  difficulty  of  the  case;  that  at  any  time  be- 
yond the  first  seven  years  they  might  fairly  presume  him  dead,  but  the 
not  hearing  of  him  within  that  period  was  hardly  sufficient  to  afford 
such  a  presumption.  The  jury  found  a  verdict  for  the  plaintiff,  and 
that  John  died  als'road  about  the  years  1785,  1786,  or  1787,  but  not 
before.  In  the  last  term  it  was  moved  to  set  aside  the  verdict  and 
grant  a  new  trial,  on  the  ground  that  Frances,  the  daughter,  was  at 
most  only  entitled  to  10  years  for  bringing  her  ejectment  after  she 
came  of  age,  which  was  in  1792,  even  if  she  were  not  bound  to  have 
made  her  entry  within  10  years  from  the  death  of  her  brother,  from 
whom  she  claimed. 

Lord  Ellenborough,  C.  J.  The  time  allov/ed  by  the  statute  for 
making  an  entry  might  be  indefinitely  extended  if  the  construction 
contended  for  by  the  plaintiff  \vere  to  be  admitted.  There  is  no  cal- 
culating how^far  it  might  be  carried  l)y  parents  and  children  dying 
under  age,  or  continuing  under  other  disabilities  in  succession.  The 
brother,  John,  through  whom  the  lessor  of  the  plaintiff,  Frances, 
claimc,  being  under  the  disability  of  nonage  at  the  time  of  his  father's 
death,  when  his  title  first  accrued,  and  dying  under  that  disability,  it 
appears  to  me  that  the  proviso  in  the  second  clause  of  tlie  statute 


Ch.  1)  POSSESSORY   TITLES  93- 

(where  resort  is  to  be  had  to  it  to  extend  the  period  for  making  an 
entry  beyond  the  20  years,)  required  the  lessor  trances,  as  heir  to  her 
brother,  to  make  her  entry  within  10  years  after  his  death :  and  that 
not  leaving  done  so,  this  ejectment  was  brought  too  late.  The_word 
"death"  in  that  clause  must  mean  and  refer  to  the  death  of  the  person 
to  whom  the  right  first  accrued^  and_whose  heir  the  claimantjsj  and 
the  statute  meant  that  the  heir  of  every  person,  to  which  person  a  right 
of  entry  had  accrued  during  any  of  the  disabilities  there  stated,  should 
have  10  years  from  the  death  of  his  ancestor,  to  whom  the  right  first 
accrued  during  the  period  of  disability,  and  who  died  under  such  a  dis- 
ability, (notwithstanding  the  20  years  from  the  first  accruing  of  the 
title  to  the  ancestor  should  have  before  expired.)  As  to  the  period 
when  the  brother  might  be  supposed  to  have  died,  according  to  the 
statute  19  Car.  II,  c.  6.  with  respect  to  leases  dependent  on  lives,  and 
also  according  to  the  statute  of  bigamy,  (1  Jac.  I,  c.  11.)  the  presump- 
tion of  the  duration  of  life,  with  respect  to  persons  of  whom  no  ac- 
count can  be  given,  ends  at  the  expiration  of  seven  years  from  the 
time  when  they  were  last  known  to  be  living.  Therefore  in  the  absence 
of  all  other  evidence  to  shew  that  he  was  living  at  a  later  period  there 
was  fair  ground  for  the  jury  to  presume  that  he  was  dead  at  the  end 
of  seven  years  from  the  time  when  he  went  to  sea  on  his  second  voy- 
age, which  seems  to  be  the  last  account  of  him.  That  was  about  the 
year  1778,  which  would  carry  his  death  to  about  1785. 

Lawrencij,  J.  Upon  the  death  of  the  father  Thomas  Jesson,  in 
1777,  the  right  descended  to  John,  the  son,  tnen  under  age,  who  died 
under  that  disability.  The^  lessor  Frances„is,..the_heir_oi_Jpl^^ 
the  statute  gives  to  the  party  to  whom  a  right  of  entry  accrues,  and  who 
is„mider  a  disability,  at  the  time,  10  years  after:  the  disability  removedj 
notwithstanding  the  20  years  should  have  elapsed  after  his  title  first 
accrued;  and  to  his  heir  the  statute  gives  10  years  after  thejdeath..oL 
such  party  dying  under  the  disability.  Here  more  than  10  years  had 
elapsed  after  the  death  of  the  brother  before  this  ejectment  was 
brought  It  appears  probable  enougiritpon  looking  into  the  case  of 
Stawell  V.  Lord  Zouch  (Plowd.  355),  that  the  word  death  was  introduc- 
ed into  the  statute  of  James  in  order  to  obviate  the  difficulty  which 
had  arisen  in  that  case  upon  the  construction  of  the  statute  of  fines,  4 
H.  VII,  c.  24,  for  want  of  that  word. 

Grose  and  Ls  Blanc,  Justices,  assenting. 

Rule  absolute.^* 

3  4  The  construction  of  the  American  statutes  of  limitation  generally  has 
been  the  same.    See  '2  C.  J.  117  et  seq. 


All 


94  '  ORIGINAL  TITLES  (P^lt  1 

CHAPTER  II 
PRESCRIPTION 


WALLACE  V.  FLETCHER. 

(Supreme  Court  of  New  Hampshire,  1855,     30  N.  H,  434.) 

This  is  an  action  on  the  case,  for  diverting  the  water  from  the  plain- 
tiff's mill,  in  New  Boston,  from  May  1,  1848,  to  the  date  of  the  writ, 
April  26,  1850. 

The  plaintiff's  evidence  tended  to  show  that  one  L.  Lincoln,  under 
whom  he  claimed,  purchased  the  land  on  the  south  side  of  the  Piscata- 
quog  river,  in  New  Boston,  bounded  by  the  river,  and  in  1804  or  1805 
erected  thereon  the  gristmill  now  owned^by  the  plaintiff,  and  extended 
his  dam  across  the  ri^ver  to  the  northJ)aiik.  J.  McLaughlin  then  owned 
the  land  upon  the  north  side  of  the  rfver;  and  there  was  no  evidence 
tending  to  show  that  any  consent  was  asked  of  McLaughlin,  or  given 
by  him,  for  the  building  of  the  dam,  or  that  he,  or  any  person  in  his 
behalf,  or  in  his  right,  made  any  objection  to  its  being  built. 

McLaughlin  died  in  the  spring  of  1807,  and  in  September  of  that 
year,  one  John  Kelso  applied  to  Abner  Dodge,  who  had  become  the 
owner  and  occupant  of  tte  gristmill  and  its  appurtenances,  through  two 
or  three  intermediate  conveyances  from  Lincoln,  and  asked  him  if  he 
had  any  objection  that  said  Kejso  should  move  his  fulling  mill,  then 
standing  about  half  a  mile  above  upon  the  river,  and  set  it  at  the  north 
end  of  his  mill  dam,  if  he  would  give  Dodge  an  adequate  compensa- 
tion. Dodge  told  him  that  he  had  no  objection,  and  Kelso  moved  his 
mill,  but  the  compensation  was  not  fixed,  though  Dodge  objected  to  his 
cutting  away  the  dam  till  it  was  done.  Kelso  cut  away  a  part  of  the 
dam  and  constructed  a  flume,  and  put  his  fulling  mill  in  operation,  and 
continued  to  occupy  the  mill  till  his  death,  in  1822.  It  did  not  appear 
that  any  other  agreement  was  made  by  Kelso  with  the  owners  of  the 
gristmill,  or  that  any  compensation  was  paid  by  him,  or  any  rate  of 
compensation  agreed  on. 

It  appeared  that  the  owners  of  the  gristmill  repaired  and  rebuilt  the 
entire  dam,  when  there  was  occasion,  and  that  Kelso  and  his  heirs,  so  . 
long  as  they  retained'the  property,  did  nothing  and  contributed  nothing 
towards  the  repairs  of  the  dam,  except  to  their  own  flume,  and  a  few 
feet  of  planking  between  the  flume  and  the  north  bank  of  the  river, 
except  that  on  one  occasion  when  the  dam  was  destroyed  by  a  freshet, 
said  Kelso  entertained  at  his  house  some  of  the  neighbors  who  volun- 
teered to  assist  in  rebuilding  it. 

It  appeared  that  at  one  time  said  Kelso,  being  asked  why  he  did  not_____ 
assist  in  repairing  the  dam,  said  he  expected  to  have  to  pay  rent  for  jt^ 


Ch.  2)  PRESCRIPTION  95 

In  1816,  Kelso  obtained  of  John  McLaughlin,  Jr.,  and  a  sister  of  his, 
two  of  the  five  children  and  heirs  of  J.  McLaughlin  before  mentioned, 
a  quitclaim  deed  of  the  land  on  the  north  side  of  the  river,  on  which 
the  fulling  mill  stood,  and  his  administrator,  in  1828,  obtained  of  an- 
other daughter  of  said  J.  McLaughlin,  Sen.,  a  similar  deed,  and  there 
was  evidence  tending  to  show  that  two  others  of  said  J.  McLaughlin, 
Senior's,  sons  enlisted  in  the  army  in  the  War  of  1812,  and  have  never 
since  been  heard  from. 

It  did  not  appear  that  said  Kelso  made  any  different  claims,  or  made 
any  change  of  any  kind  in  his  relations  to  the  owners  of  the  gristmill, 
after  he  obtained  his  deed  of  J.  McLaughlin,  Jr.,  so  long  as  he  lived. 

The  evidence  tended  to  prove  that  during  the  life  of  said  Kelso,  and 
ever  afterwards,  the  owners  of  the  gristmill  claimed  that  they  were  en- 
titled to  the  exclusive  use  and  control  of  the  entire  water  power  cre- 
ated by  their  mill  dam,  on  the  ground  that  they  acquired  such  right  by 
first  building  a  dam  there  and  setting  up  a  mill,  and  that  it  was  consid- 
ered in  the  neighborhood  a  disputable  matter  whether  the  owners  of 
the  north  side  of  the  river  had  any  privilege  there,  but  it  did  not  appear 
that^said  Kelso  ever  disputed  the  claim  in  this  respect  made  by  the 
owners  of  the  gristmill;  on  the  contrary,  the  evidence  tended  to  prove 
that  during  said  Kelso's  life,  and  until  the  sale  of  the  interest  of  his 
heirs,  in  1826,  the  owners  of  the  gristmill  were  in  the  habit  of  calling 
on  the  occupants  of  the  fulling  mill,  either  personally  or  by  rapping  on 
the  side  of  the  gristmill,  to  shut  down  their  gates,  and  they  were  ac- 
cordingly closed  when  the  river  was  low,  and  the  water  was  needed  to 
carry  the  gristmill,  and  that  in  such  dry  times  the  gates  of  the  fulling 
mill  were  sometimes  closed  by  the  occupants,  of  their  own  accord,  and 
sometimes  by  the  owners  of  the  gristmill,  and  that  said  Kelso,  at  such 
times,  sometimes  fulled  his  cloth  in  the  night,  when  the  gristmill  was 
not  in  operation,  and  sometimes  took  his  cloth  to  be  fulled  at  mills  in 
other  towns. 

The  evidence  also  tended  to  prove  that  the  owners  of  the  gristmill 
also  claimed  that  the  gristmill,  as  such,  had  a  prior  right  to  the  use  of 
the  water,  when  necessary,  before  any  other  mill  or  machinery  on  the 
dam,  and  it  did  not  appear  that  this  right  was  denied  or  disputed  by 
Kelso,  or  his  heirs  or  representatives. 

It  appeared  that  at  Kelso's  decease  his  children  were  minors,  and 
they  so  continued,  except  the  eldest,  for  a  short  time,  until  their  inter- 
est in  the  fulling  mill  and  lot  was  sold  by  the  eldest  son,  and  by  the 
guardian  of  the  others,  by  license  of  the  court  of  probate. 

The  fulling  mill  was  leased  by  the  administrator  of  Kelso's  estate 
for  two  years,  fill  18Z4,  and  by  the  guardian  of  the  children  for  two 
years  more,  to  1826,  in  March  or  April.  These  leases  conveyed  the 
fulling  mill  and  water  privilege  for  the  clothing  business,  "except  when 
there  was  not  sufficient  water  for  the  gristmill,"  and  it  appeared  that 
during  those  leases,  the  owners  of  the  gristmill,  when  the  water  was 


96  ORIGINAL  TITLES  (Part  1 

low,  drew  all  the  water,  and  the  gates  of  the  fulling  mill  were  shut 
down  at  such  times. 

A  witness  for  the  plaintiff  testified  tliat  he  was  a  referee  with  two 
others,  now  deceased,  to  settle  a  claim  made  by  A.  Dodge  against  the 
estate  of  Kelso,  for  compensation  for  the  use  of  the  water  by  the  full- 
ing mill.  The  parties  stated  to  them  that  the  owners  of  the  gristmill 
had  built  the  dam,  and  had  done  all  that  had  been  done  to  keep  it  in 
repair;  that  Kelso  came  in  under  an  agreement  to  pay  a  reasonable 
compensation  for  the  use  of  the  water,  though  it  had  never  been  agreed 
what  that  compensation  should  be,  and  that  Kelso  had  used  the  water 
for  a  number  of  years  under  that  agreement;  that  the  most  of  the  year 
there  was  water  enough  for  both,  and  when  there  was  not  water  enough 
for  both,  the  gristmill  had  the  preference,  and  when  the  water  was  low, 
was  to  have  all  the  water.  The  question  submitted  to  them  was,  what 
the  estate  of  Kelso  should  pay  towards  the  expense  of  supporting  the 
dam,  or  what  should  be  paid  for  the  use  of  the  water,  when  there  was 
water  enough  for  both  mills.  He  could  not  say  what  was  said  by 
Dodge  or  the  administrator,  but  what  was  said  by  either  was  assented 
to  by  tlie  other.  There  was  no  dispute  between  thern.  The  award  was 
produced  and  verified  by  him.  It  recited  a  submission  by  bonds,  and 
among  other  things,  had  an  award  of  "forty  dollars  to  be  paid  to  Dodge 
for  the  use  of  the  water  privilege,"  and  was  dated  March  26,  1823.  At 
the  foot  of  it  was  written,  "We  agree  to  the  above  award,"  which  was 
signed  by  Dodge  and  the  administrator. 

To  all  this  evidence  of  the  acts  and  admissions  of  the  administrator 
of  Kelso's  estate,  and  of  the  guardian  of  his  minor  children,  it  was  ob- 
jected that  neither  an  administrator  nor  guardian  has  any  power,  di- 
rectly or  otherwise,  to  create  an  easement  on  the  minors'  estate,  or  by 
his  acts  or  admissions  to  furnish  or  make  any  evidence  of  such  an  ease- 
ment, to  affect  any  other  persons  than  themselves,  and  the  whole  evi- 
dence was  therefore  inadmissible  against  the  grantees  of  the  minors' 
estate ;  but  the  evidence  was  admitted,  subject  to  exception. 

It  was  objected  that  tlie  award  was  not  evidence  of  the  submission 
by  bond,  without  the  production  of  the  bonds,  or  an  account  of  their 
absence,  but  it  was  admitted  on  the  proof  of  the  agreement  of  the  par- 
ties, written  upon  it,  subject  to  the  exception  as  to  its  admission  and 
effect. 

It  appeared  by  deeds  produced  by  the  defendants,  that  one  of  the 
heirs  of  Kelso,  then  of  age,  and  the  guardian  of  the  minor  children, 
under  a  license  from  the  court  of  probate,  sold  and  conveyed  the  full- 
ing mill  to  D.  Smith,  on  the  5th  of  August,  1826.  Smith  soon  after 
made  a  contract  with  the  defendant,  Fletcher,  and  gave  him  a  bond  that 
he  would  convey  the  property,  upon  the  payment  of  an  agreed  price, 
within  a  certain  time ;  that  in  the  meantime  Fletcher  should  occupy  the 
premises,  paying' a  certain  rent,  and  that  when  he  paid  $200  toward  the 
purchase,  the  rent  should  cease,  and  after  that  he  was  to  pay  only  the 
interest  on  the  balance  of  the  purchase  money. 


Ch.  2) 


PRESCRIPTION 


97 


Fletcher  occupied,  paying  rent  for  two  years,,  till  1828,  and  then  paid 
them  $200,  and  afterwards  occupied^  as_^  owner,  paying  interest  only. 
During  the  time  from  August,  1826,  to  the  fall  of  1828,  while  Fletcher 
occupied  as  tenant,  Smith  paid  to  the  owner  of  the  gristmill  half  a  dol- 
lar a  month  for  the  use  of  the  water.  He  testified  he  paid  it  because 
it  was  unsettled  and  considered  disputable,  whether  there  was  any  priv- 
ilege on  the  north  side.  He  said  he  was  offered  a  higher  price,  if  he 
would  warrant  the  water,  but  he  considered  it  disputable,  and  declined 
to  do  it.  In  April,  1830,  he  conveyed  to  one  Austin,  under  whom  the 
defendants  claim.  While  he  owned  the  fulling  mill,  and  paid  rent,  the 
owners  of  the  gristmill  claimed  they  had  the  first  right  to  the  water, 
and  it  was  generally  understood  they  had  such  right. 

After. the  payment  of  the  $200  by  Fletcher  to  Smith,  the  right  of  the 
plaintiff  to  a  preference  in  the  use  of  the  water,  or  to  any  rent  or  com- 
pensation for  the  use  of  it,  was  denied  by  Fletcher,  and  he  ceased  to 
shut  his  gates  when  the  owners  of  the  gristmill  requested  it,  but  it  did 
not  appear,  howearly  this  resistance  to  the  plaintiff's  claim  was  first 
made.  ""~ 

The  court  instructed  the  jury  that  if  the  owner  of  the  mill  privilege, 
under  a  claim  of  right,  used  and  exercised  the  rights  he  claimed,  without 
interruption  or  opposition,  for  a  period  of  twenty  years,  this  gave  him 
a  perpetual  right,  and  that  it  was  not  material  whether  his  claim  of 
right  was^welFf  ounded  in  law,  if  it  was  so  exercised  and  submitted  to. 
That  if  a  party  had  once  acquired  a  right  by  such  twenty  years  enjoy- 
ment, he  would  not  lose  it  by  any  interruption  afterwards,  unless  that 
interruption  continued  for  twenty  years,  and  the  burden  was  on  the 
party  who  asserted  such  interruption,  to  prove  it.  That  if  the  jury 
should  find  that  the  plaintifi',  under  a  claim  of  right,  had  used  the  wa- 
ter to  the  exclusion  of  the  fulling  mill,  in  the  dry  season,  when  there 
was  only  enough  for  the  grist  mill,  or  had  permitted  the  owners  of  the 
fulling  mill  to  draw  water  from  the  dam  for  the  use  of  that  mill,  only 
on  payment  of  a  reasonable  compensation,  for  the  term  of  twenty  years, 
without  interruption,  they  should  find  their  verdict  in  his  favor,  not- 
withstanding they  should  find  that  during  a  part  of  that  time  the  title 
to  the  fulling  mill  was,  by  descent,  in  the  hands  of  minors. 

The  jury  found  a  verdict  for  the  plaintiff,-  which  the  defendants 
moved  to  set  aside,  by  reason  of  the  said  rulings  and  instructions  of 
the  court. 

Bell,  J.  At  common  law,  a  title  acquired  by  possession  during  the 
period  and  in  the  manner  prescribed  by  the  law,  was  called  a  title  by 
prescription.  By  the  lapse  of  the  requisite  time,  what  was  at  first  a 
bare  possession,  becomes  a  right  of  property,  perfect  and  indefeasible. 
Gale  &  What,  on  Easements,  62. 

The  doctrine  of  the  common  law,  as  cited  by  Coke,  (Coke's  Litt. 
113,  b,)  from  Bracton,  (Lib.  2,  fol.  51,)  substantially  agrees  with  the 
civil  law.  "Both  to  customs  and  prescriptions,  these  two  things  are  in- 
Aig.Peop. — 7 


98  ORIGINAL   TITLES  (Part  1 

■^1^  cidents  inseparable,  viz. :    possession  or  usage  and  time.     Possession 

must  have  three  quahties,  it  must  be  long,  continual,  peaceable ;  longa, 
continua,  et  pacifica,  for  it  is  said,  transferuntur  dominia  sine  tituo  et 
traditione,  per  usucapionem ;  sed,  per  longam,  continuam,  et  pacificam 
possessionem.  Longa,  i.  e.,  per  spatium  temporis  per  legam  definitam ; 
continua,  dico,  ita  quod  non  sit  legitime  interrupta;  pacificam,  dico, 
quia  si  contentiosa  fuerit,  idem  erit,  quod  prius,  si  contentio  fuerit 
justa."  "Longus  usus,  nee  per  vim,  nee  clam,  nee  precario,"  &c.  G. 
&  W.  122. 

By  the  civil  law,  the  rule  was  "ut  prescriptione  longi  temporis,  id 
est  decem  annorum  inler  presentes,  et  viginti  inter  absentes,  servitutes 
adquirantur."  1  Hei.  ad  Pan.  part  2,  §  158;  2  lb.  part  6,  §§  122- 
125;  Domat's  Civil  Law,  §  2190.  But  by  the  common  law,  the  time 
was  not  fixed  to  a  certain  number  of  years,  but  as  it  was  expressed 
by  Littleton,  (Ten.  §  170)  it  was  "de  temps  dont  memorie  des  homes 
ne  curt  a  le  contrarie,"  or  as  Coke  (Coke's  Litt.  115,  a)  quotes  from 
Bracton,  "Docere  oportet  longum  tempus  et  longum  usum  ilium;  viz. 
qui  excedit  memoriam  hominum,  tale  enim  tempus  sufficit  pro  jure." 

In  1275,  by  statute  3  Ed.  I,  writs  of  right  were  limited  to  rights 
actually  enjoyed  after  the  first  year  of  Richard  I,  (1189,)  and  by  anal- 
ogy to  the  period  fixed  by  tliat  statute,  it  was  held  that  time  of  legal 
memory  reached  to  that  date,  and  not  beyond  it.  Being  a  fixed  date, 
it  was  of  course  continually  receding,  until  it  became  absurd,  since  it 
was  practically  impossible  to  prove  any  fact  of  so  ancient  date. 

The  courts  might  have  held,  when  difficulties  were  found  to  result 
from  this  arbitrary  rule,  that  the  ancient  law,  which  fixed  the  period 
beyond  which  actual  memory  did  not  reach,  was  still  in  force,  or  they 
might  have  availed  tliemselves  of  the  passage  of  the  statute  of  32 
Henry  VIII,  which  reduced  the  limitation  of  writs  of  right  to  three 
score  years,  to  decide  by  analogy  to  that  statute,  as  was  done  in  tlie 
time  of  Edward  I,  that  the  time  of  legal  memory  was  reduced  sixty 
years.     It  appears  by  Littleton,  sec.  170,  that  in  his  time  it  was  seri- 
ously contended  that  the  time  of  legal  memory  was  not  changed  by 
the  statute  of  Edward  I.    And  Rolle,  C.  J.,  was  of  that  opinion,  though 
he  admits  the  practice  was  otherwise.    2  RoUe's  Ab.  Prescription,  P. 
And  many  respectable  authorities  maintained,  after  the  statute  of  32 
Henry  VIII,  that  time  oMegal  memory  was  sixty  years,  as  Rolle,  C. 
J.,  Sergeant  Williams,  2  Wms.  Saund.  175,  n.  a..  Lord  Mansfield,  2 
Ev.  Poth,  136,  Blackstone,  J.,  2  Com.  31,  Abbott,  C.  J.,  5  B.  &  A. 
215,  and  Dallas,  C.  J.,  C.  B.  Moore,  558. 
r    From  causes  which  are  not  now  apparent,  neither  of  these  views 
J  prevailed,  and  the  consequence  was  that  no  title  to  any  easement  could 
I  be  supported  upon  proof  of  occupation  and  enjoyment,  however  long 
V^ontinued,  if  its  origin  could  be  shown. 

The  natural  and,  indeed,  necessary  consequence  of  a  rule  so  ab- 
surd, and  one  necessarily  productive  of  so  unjust  consequences,  was 
that  tlie  courts  were  driven  to  evade  it  by  refinements  and  fictions. 


Ch.  2)  PRESCRIPTION  99 

It  seems  by  the  case  of  Guernsey  v.  Rodbridge,  Gil.  Eq.  Cases  4,  s.  c. 
2  Vern.  390,  under  the  name  of  Finch  v.  Resbridger,  in  1707,  that  the 
court  of  chancery  first  adopted  the  principle  of  presuming  the  former 
existence  and  loss  of  a  deed,  where  a  long  and  uninterrupted  posses- 
sion of  an  easement  was  shown.  It  was  not  until  1761  that  this  prin- 
ciple was  adopted  in  the  courts  of  common  law  in  England.  Some 
of  the  judges  there  were,  at  times,  inclined  to  give  to  this  presumption 
the  effect  of  a  presumptio  juris  et  de  jure,  a  legal  presumption  binding 
on  both  courts  and  juries,  as  a  rule  from  which  neither  had  a  right 
to  depart,  a  presumption  of  a  right  constituting  a  perfect  title  or  bar, 
as  the  case  might  be.  Wilmot,  J.,  in  Lewis  v.  Price  and  Dougal  v. 
Wilson,  Saund.  175,  a;  Eyre,  C.  J.,  in  Hed  v.  Holcroft,  1  B.  &  P. 
400;  Lord  Ellenborough,  in  Balston  v.  Benstead,  1  Camp.  163,  and 
in  Bealey  v.  Shaw,  6  East,  214;  and  Lord  Mansfield  in  Darwin  v. 
Upton,  2  Wms.  Saund.  175,  a,  and  Mayor  v.  Horner,  Cowp.  102. 

But  tlie  current  ^f__English  decisions  has  gone  no  further_than  to 
hold  that  longjcontinued  and  uninterrupted  possession  is  evidence  from 
which  a  jury  mav_prp'^nmp  a  (]ppc\  Keymer  v.  Summers,  B.  N.  P, 
74;  Campbell  v.  Willson,  3  East,  294;  Gray  v.  Bond,  5  Moore,  327, 
s.  c.  2  B.  &  B.  627;  Cross  v.  Lewis,  2  B.  &  C.  686;  Darwin  v.  Up- 
ton, 2  Wms,  Saund.  175,  a;   Livitt  v.  Wilson,  3  Bing.  115. 

The  instruction  given  to  the  jury  that  such  proof  is  competent  evi- 
dence, from  which  they  may  infer  the  existence  and  loss  of  a  deed,  is 
understood  to  be  accompanied  by  a  recommendation  so  to  find  the 
fact,  whatever  may  be  their  individual  impression  of  its  truth,  and  it 
seems  that  verdicts  rendered  in  conflict  with  such  recommendations 
would  be  set  aside.  Bealey  v.  Shaw,  6  East,  214,  per  Ld.  Ellenborough, 
C.  J.;  Bright  v.  Walker,  1  Cr.,  M.  &  R.  217,  per  Parke,  B.;  Jenkins 
V.  Harvey,  1  Cr.,  M.  &  R.  894,  per  Alderson,  B.^ 

Many  cases,  in  this  country,  have  followed  in  the  tracks  of  the 
English  decisions,  though  it  is  apparent  that,  in  a  newly  settled  country 
like  ours,  where  to  a  great  extent  every  thing  is  of  recent  date,  and 
the  history  of  our  towns,  of  our  roads,  farms,  mills  and  dwellings  are 
known,  a  rule  like  that  adopted  in  England  is  in  no  respect  adapted  to 
our  situation.  On  other  subjects,  the  common  law  has  been  every 
where  modified,  to  adapt  it  to  the  wants  of  our  community.  Tjie  Eng- 
lish^decisions  on  this_subjert  have  been  but  mr)des_of_eyading  the^ffect 
of^^earjy  decisions  of  their  courts^which  have  been  found  inconsistent 
with  the  ^)rinciples  of  justicei  and  it  is  clearly  as  much  within  the  le- 
gitimate sphere  and  customary  action  of  the  courts  to  disregard  or 
to  overrule  such  decisions,  as  it  can  be  to  evade  them  by  nice  presump- 
tions, either  of  fact  or  of  law.  Itwas  the  wise  course,  prescribed  by 
principle  as  well  as  by  public  convenience,  to  overrule  the  absurd  de- 
cisions which  sanctioned  a  fixed_2oirit  in  the  early  history  of  England, 

1  See,  also,  Cockburn,  C.  J.,  in  Angus  &  Co.  v.  Dalton,  3  Q.  B.  D.  85,  103- 
113  (1S77);  Thesiger,  L.  J.,  in  same  case  on  appeal,  4  Q.  B.  D.  1G2,  170-175 
(1S7S). 


100  OEIGINAL  TITLES  (Part  1 

as  the  Hmlt^of  legal  mgmory,  and  at  the  same  time  to  restore  the  prin- 
ciple upon  which  tliat  decision  appears  to  be  made,  that  in  cases  where 
the  Legislature  have  not  fixed  a  precise  rule  of  limitation,  rightS-shall 
beacquired  and  barred  by  a  prescription- of  such  length  of  tirnejis  has 
been  fixed_by_theJLegislature  as  the  proper  limitation_Jn__analogous 
cases^_Ricard  v.  \ViIIiams,  7  Wheat.  110,  5  L.  EOOSTlSunt  vTSunt, 
3  Mete.  (Mass.)  185,  Z7  Am.  Dec.  130.  • 

I     \X  was  to  adopt  here  as  the  law,  the  strong  view  of  Wilmot,  J.,  in 
Lewis  V.  Price,  that  if  a  possession  of  twenty  years  is  sufficient  to  give 
1  a  man  title  to  a  house,  there  can  be  no  reason  why  it  should  not  be 
[  sufficient  to  give  title  to  any  easement  belonging  to  the  house. 

Upon  these  views,  we  take  the  law  to  be  here  settled,  as  is  laid  down 
by  Prof.  Greenleaf,  2  Greenl.  Ev.  §  539:  "By  the  weight  of  authority, 
as  well  as  the  preponderance  of  opinion,  it  may  be  stated  as  the_gen- 

ieral  rule  oLAmerican  law,  tliat  an  adverse,  exclusive  and  uninterrupted 
enjoyment  for  twenty  years  of  an  incorporeal  hereditament  affords  a 
conclusive  presumption  of_  a  ^ran_tj  or  a  right,  as  the  case  may  be, 
which  is  to  be  applied  as  a  presumptio  juris  et  de  jure,  wherever  by 
possibility  a  right  can  be  acquired  in  any  manner  known  to  the  law. 
In  order,  however,  that  the  enjoyment  of  an  easement  in  another's  land 
may  be  conclusive  of  the  right,  it  must  have  been  adverse,  that  is,  un- 
der a  claim  of  title,  with  the  knowledge  and  acquiescence  of  the  owner 
of  tlie  land,  and  uninterrupted ;  and  the"  burden  of  proving  this  is  on 
|;he  party  claiming  the  easement."  In  support  of  this  position,  he  cites 
Tyler  v.  Wilkinson,  4  Mason,  402,  Fed_Cas.  No.  14,312 ;  Ingraham  v. 
Hutchinson,  2  Conn.  584;  Strickler  v.  Todd,  10  Serg.  &  R,  (Pa.)  63, 
69,  13  Am.  Dec.  649;  Sherwood  v.  Burr,  4  Day  (Conn.)  244,  4  Am. 
Dec.  211;  Tinkham  v.  Arnold,  3  Greenl.  (Me.)  120;  Hill  v.  Crosby, 
2  Pick.  (Mass.)  466,  13  Am.  Dec.  448;  Ricard  v.  Williams,  7  Wheat. 
109,  5  L.  Ed.  398;  Coolidge  v.  Learned,  8  Pick.  (Mass.)  504;  Sargent 
V.  Ballard,  9  Pick.  (Mass.)  251;  Melvin  v.  Whiting,  10  Pick.  (Mass.) 
295,  20  Am.  Dec.  524;  Bolivar  M.  Co.  v.  Neponset  M.  Co.,  16  Pick. 
241 ;  Morgan  v.  Banta,  1  Bibb  (Ky.)  582 ;  Simpson  v.  Hawkins,  1 
Dana  (Ky.)  306;  Shaw  v.  Crawford,  10  Johns.  (N.  Y.)  236;  John  v. 
Stevens,  3  Vt.  316.  To  which  may  be  added,  Stiles  v.  Hooker,  7  Cow. 
(N.  Y.)  266;  1  Kent,  Com.  444;  2  Hill.  Ab.  60,  61;  Shumway  v. 
Simonds,  1  Vt.  53 ;  Baldwin  v.  Calkins,  10  Wend.  (N.  Y.)  166;  and 
Miller  v.  Garlock,  8  Barb.  (N.  Y.)  153,  where  the  principles  applica- 
ble in  cases  of  this  kind  are  very  clearly  stated  and  condensed ;  Hoyt 
V.  Carter,  16  Barb.  (N.  Y.)  219;  Valentine  v.  Boston,  22  Pick.  80, 
33  Am.  Dec.  711;  Atkins  v.  Bordnian,  20  Pick.  (Mass.)  302;  Little- 
field  V.  Maxwell,  31  Me.  (1  Red.)  140,  50  Am.  Dec.  653. 

In  this  State,  in  Bullen  v.  Runnels,  2  N.  H.  255,  9-  Am.  Dec.  55, 
it  was  said  by  Woodbury,  J.,  and  held  by  the  court,  that  the.  most  con- 
clusive evidence  as  to  tlie  interests  of  parties  in  water-courses,  was 
the  occupation  of  the  parties  during  twenty  years,  because  that  is  the 
common  and  peculiar  mode  of  acquiring  rights  to  the  use  of  water, 


Ch.  2)  PEESCEIPTION  101 

and  because  so  long  an  occupation  of  a  stream  not  navigable  raises 
a  presumption  that  the  grants,  now  lost  by  time  and  accident,  have 
passed  between  tlie  parties,  in  conformity  to  the  occupation. 

In  Oilman  v.  Tilton,  5  N.  H.  231,  Richardson,  C.  J.,  says:  "Some 
have  held  that  a  term  of  twenty  years  of  exclusive,  uninterrupted  en- 
joyment of  the  use  of  water,  in  a  particular  manner,  is  a  conclusive 
presumption  of  right,  presumptio  juris  et  de  jure,"  It  was  not  the 
point  directly  before  the  court,  and  he  says  no  more;  but  we  think 
that  the  remark  shows  that  the  opinion  met  his  approval.  The  point 
decided  was,  that  an_adverse  enjovment  of  water  for  any  period  less 
than  twenty  years  is  not  alone^sufficient  to  warranLlhe  presumpjion 
of  a  grant. 

In  the  case  of  Watkins  v.  Peck,  13  N.  H.  360,  40  Am.  Dec.  156,  it 
was  held  that  the  adverse,  exclusive  use  of  water  flowing  through  an 
aqueduct,  by  the  owners  and  occupants  of  a  house,  for  the  term  of 
twenty  years,  furnishes  presumptive  evidence  of  a  grant  from  the 
owner  of  the  land  through  which  it  is  brought,  to  have  it  flow  in  the 
manner  it  has  been  accustomed  to  do  for  that  period.  And  the  learned 
chief  justice  who  delivered  the  opinion  of  the  court,  remarks  of  the 
case:  "During  all  that  time,  (more  than  twenty  years,)  the  right  of 
the  plaintiffs,  and  those  under  whom  they  hold  their  lands,  thus  to 
take  and  use  tlie  water,  has,  so  far  as  appears,  not  been  contested  by 
any  one;  nor  is  there  any  express  evidence  of  any  permission  asked 
within  the  time  or  of  any  sum  paid  for  the  use,  or  any  acknowledg- 
ment that  the  use  was  at  the  pleasure  of  those  through  whose  land  the 
aqueduct  passed.  These  facts,  if  they  stood  alone,  would  furnish 
abundant  evidence  of  title  in  the  plaintiffs  to  take  and  use  the  water, 
as  they  and  others,  whose  estates  they  hold,  had  been  accustomed  to 
do  for  such  period."  He  subsequently  says :  "The  plaintiffs'  claim 
does  not  rest  upon  a  prescription.  There  is  no  pretense  that  the  use 
has  extended  beyond  legal  memory.  The  plaintiffs  must^;elx-U£0" 
the  presumption  of  a  grant,  arising  froman  undisturbed  enjoyment 
of  the  use  of  it,  flowing^through  the  land^wned  by  the  defendantjor 
so  Jong  a  period;  which  may  be  in  the  nature  of  a  prescription,  ex- 
cept  so  far  as  time  is  concerned.'^  ~ 

It  is  apparent  that  the  learned  judge  referred  to  a  prescription  such 
as  is  recognized  by  the  ancient  books  of  thejaw^  founded  upon  such 
a  length  of  possession  as  the  memory  of  man  does  not  reach  to,  go- 
ing back  to  the  first  year  of  Richard  I,  three  hundred  years  before  the 
discovery  of  our  continent.  Such  a  prescription,  of  course,  could  not 
exist  in  this  case,  nor  in  any  case  arising  in  this  country.  And  any 
attempt  to  reason  from  the  nature  of  such  a  prescription,  so  far  as 
it  related  to  time,  might  be  properly  rejected.  The  analogy  of  the 
presumption  of  title,  or  of  grant,  as  the  case  may  be,  to  a  prescription, 
except  so  far  as  time  is  concerned,  is  distinctly  admitted.  And  there 
seems  to  us  both  convenience  and  propriety  in  applying  the  term  pre- 
scription in  cases  of  this  kind,  since  the  prescription  of  the  ancient 


r; 


102  OBIGINAL  TITLES  (Part  1 

books  can  never  exist  here,  and  even  as  to  time,  the  limit  recognized 
here  agrees  with  that  of  tlie  civil  law.  Hein.  ad  Pand.,  before  cited. 
However  this  may  be,  this  case  furnishes  strong  evidence  of  the  con- 
currence of  tliis  eminent  judge  in  the  general  current  of  decisions  in 
this  country,  as  stated  by  Prof.  Greenleaf. 

Upon  this  view  of  the  law,  we  think  tlie  instruction  given  to  tlie 
jury,  that  if  an  owner  of  a  mill  privilege,  under  a  claim  of  right,  used 
\  ■  and  exercised  the  rights  he  claimed,  without  opposition  or  interrup- 

tion, for  a  period  of  twenty  years,  this  gave  him  a  perpetual  right,  was, 
upon  the  facts  presented  by  the  case,  correct,  unless  the  court  erred 
in  that  part  of  the  charge  where  they  say  that  the  exercise  of  the  rights 
claimed  for  twenty  years,  without  interruption,  entitled  the  plaintiff  to 
!  a  verdict,  notwithstanding  they  shouldLfindjtha^^Airing^j,^aTt^^ 
time  the  title  to  the  property  affected  was,  by  descent,  in  thejiarids^  of 
minors. 

This  question,  in  a  different  form,  came  before  the  court  in  the  case 
of  Watkins  v.  Peck,  and  it  was  there  said :    "We  are  of  opinion  that 
no  grant  can  be  presumed  from  an  adverse  use  of  an  easement  in  the 
land  of  another,  for  the  term  of  twenty  years,  where  the  owner  of_ 
.  the  land  w^as,  at  the  expiration  of  the  twenty  years,  and  long  before, 

\  ;     incapable  of  making  any  grant,  whether  the  disability  arose  from  in- 

sV^)  fancy  or  insanity.     Perhaps  a  disability  intervening  during  the  lapse 

of  tlie  term,  but  not  extending  to  the  termination  of  the  twenty  years, 
M^  might  not  be  sufficient  to  rebut  the  presumption,  but  it  would  be  absurd 

to  presume  a  grant,  where  it  was  clear  that  no  such  grant  could  have 
existed."  This  case  is  relied  on  by  the  defendants  as  decisive  of  the 
)resent  case,  but  we  are  unable  so  to  regard  it. 
[n  the  present  case,  the  period  of  twenty  years,  necessary  to  give  a 
I' title  by  presumption  of  a  grant  or  title,  commenced  in  1807,  and  ended 
in  1828,  after  which  time  the  right  was  denied,  and  its  exercise  in- 
terfered with.  From  1822  to  1826,  tlie  title  of  the  defendant's  estate, 
in  which  the  easement  was  claimed,  was  in  the  minor  children  of 
Kelso,  the  former  owner,  then  deceased,  and  their  interest  was  sold 
in  1826,  by  their  guardian,  by  license  from  the  court  of  probate.  The 
disability  of  the  owners  did  not  extend  to  the  end  of  the  twenty 
years,  but  ceased  two  years  previously.  That  case  was  not  decided  in 
Watkins  v.  Peck,  but  was  in  express  terms  left  undecided. 

The  case  then  before  the  court  did  not  require  the  decision  of  any. 
question  on  the  subject,  since  it  was  held  that  the  then  defendants  tak- 
iiig  the  water^by  contract_jrom  the  premises  of  a  third  person,  could 
justjfy^jLindeOhaL_person3l-thgy  couTd~not~standnonr'"tlfeir  own  oc- 
cupation.  _  But  it  is  not  necessary  here  to  question  the  ruling  there 
made,  in  tlie  case  then  before  the  court. 

But  we  think  that,  [n  Ae  present  case,  where  it  appeared  that  the 
parties  interested  were  of  full  age  at  the  "time  when  the  possession  and 
bser  commenced,  and  for  fifteen  years  after;  and  also  at  the  time 
when  the  full  time  of  twenty  years  was  completed,  and  for  two  years 


Ch.  2)  PRESCRIPTION  103 

before,  and  the  title  of  the  minors  intervened  for  some  three  or  four 
years  between-  those  periods,  their  disabiHty  would  iiot_prevent  a  title 
from  being^  acquired  bv  twenty  yefir<^  possession. 
^1.,-We  have  already  stated  our  impression  that  by  the  law,  as  generally 
recognized  in  this  country,  the  party  claiming  title  under  such  posses- 
sion is  not  obliged  to  rely  merely  on  a  presumption__of_a_.graiit,  but 
he  may  rest  on  a  presumption  of  right,  or  of  any  grant,  reservation 
or  record,  which  may  be  necessary  to  establish  his  title;  and  it  seems 
to  us  this  may  properly  be  regarded  as  a  species  of  prescription,  estab- 
lished here  by  a  course  of  judicial  decisions,  by  analogy  to  the  stat- 
ute of  limitations  of  real  actions.  Coolidge  v.  Learned,  8  Pick.  (Mass.) 
504;   Melvin  v.  Whiting,  10  Pick.  (Mass.)  295,  20  Am.  Dec.  524. 

In  cases  where  the  party  claiming  title  under  such  presumption,  may 

find  it  necessary  to  rely  upon  the  presumption  of  a  deed,  we  think  that 

long  continued  user  is  evidence  of  a  lost  or  non-existing  grant,  from 

some  person  who  might,  at  some  time,  have  made  a  valid  grant  to  some 

person  capable  of  accepting  it.    It  cannot  prove  more  than  this.    User 

'^  cannot  prove  a  grant  by  A.  to  B.,  on  a  given  day,  unless  there  be 

""other  circumstances,  which   confine  the   presumption  to  a  particular 

time,  and  to  those  persons  only.    The  evidence  of  such  limitation  forms 

no  essential  or  natural  part  of  the  proof  of  user.    Campbell  v.  Wilson, 

3  East,  294 ;   French  v.  Marstin,  24  N.  H.  453,  57  Am.  Dec.  294. 

/It  strikes  us  that  the  legitimate  and  natural  tendency  of  evidence  of 

User  may,  in  many  cases,  be  rather  to  prove  a  deed  existing  before  the 

/commencement  of  the  user,  than  one  executed  during  the  time  of  the 

/use,  or  at  its  termination.     Tinkham  v.  Arnold,  3  Greenl.  (Me.)  122. 

j  Tjie  earliest  act  of  user  proved,  tends  to  prove  j^ght  thenjgxisting, 

I  upon  the  principle  that  he  who  witnesses  any  encroachment  upon  his 

rights,  without  objection  or  opposition,  seems  to~admit,  in  "some  de- 

.  gree,  however  slight,  a  right  in  the  party  who  does  it.     Suchjight_evi- 

dence  gains^orce  by  cojitinuedrepetition,  until  a.^the_end  of  twenty 

years  it  becomes,  unexplained,  conclusive  evidence  of  right. 

This  species  of  prescription  being  established  here  upon  the  neces- 
sity existing  among  us,  of  some  mode  of  determining  the  rights  to 
easements,  of  a  more  rational  character  than  the  ancient  rule  of  pre- 
scription, reaching  back  to  the  time  of  legal  memory,  and  applicable 
to  all  cases,  tlie  analogy  of  the  statute  of  limitations,  by  which  tlie 
period  of  twenty  years  is  adopted  as  the  time  of  prescription,  seems 
reasonable  and  proper  to  be  followed  likewise,  as  to  the  exceptions 
M^r^  prescribed  by  that  statute.  Those  exceptions  are  of  two  kinds,  the 
]  case  ofareversioner  against  whom  the  statute  does  not  begin  to  run, 

'  and  by  parity  of  reason,  the  time  of  prescription  does  not  begin  to  run 

until  his  interest  becomes  vested,  so  as  to  give  him  a  right  of  action. 
The  tenant  for  life  or  years  may  grant  easements,  or  permit  them  to 
be  acquired  by  user,  and  they  will  be  valid  against  himself  and  those 
who  hold  his  estate  during  its  continuance,  and  perhaps  not  afterwards, 
where  the  reversioner  had  previously  neither  cause  nor  right  to  com- 


104 


ORIGINAL  TITLE8 


(Part  1 


y 


plain.  Daniel  v.  North,  11  East,  370;  Bradburg  v.  Gimsell,  2  Wms. 
Saund.  175,  d;  Barker  v.  Richardson,  4  B.  &  A.  579;  Ang.  Adv.  Enj. 
46;    2  Greenl.  Ev.  §  545. 

/cTwnerswho^  are  under  disabilities  when  tlieir  riglits_are-iinsL  en- 
croached  upon,  and  the  right~oI_actIon  for  such  encroachment_jirst 
accrues,  have  by  tlie  statutes  five  years  to  bring  their  actions,  after 
the  disability  is  removed,  though  the  period  of  twenty  years  may  have 
long  expired.  j<'.oster,v._Mar shall,  22  N.  H.  491.  In  such  a  case,  we 
think  there  would  be  the  strongest  reason  for  applying  to  the  priv- 
ileges of  the  house  the  same  rule  we  apply  to  the  house  itself,  and  to 
allow  to  the  disabled  owner  tlie  rule  tliat  he  may  have  five  years  to 
contest  his  liability,  after  his  disability  has  ceased.  ^ut_under  the  stat- 
ute jt_has  always  been_  held_ihat_jiter  the  statute  has  oncg  commenced 
to  run^  no  intervening  disability  will  defeat  the  ordinary  limitation 
ati_sing  frotii— twenty  years___adxgl_se  possession.  Howell  v.  Zouch, 
Plowd.  353;  Doe  v.  Jesson,  6  EastTSO ;  Eager  v.  Commonwealth,  4 
Mass.  182;  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74,  15  Am.  Dec.  433; 
Griswold  v.  Butler,  3  Conn.  227;  McFarland  v.  Stone,  17  Vt.  165,  44 
Am.  Dec.  325;   Mercer  v.  Selden,  1  How.  37,  11  L.  Ed.  38. 

The  same  rule  seems  to  us  proper  to  be  applied,  in  case  of  disabilities 
arising  to  the  owners  of  real  estate,  after  the  user  and  enjoyment  of 
an  easement  has  been  commenced  under  a  claim  of  right,  with  the 
knowledge  of  the  owner,  and  without  question  or  opposition  on  his 
part.  Such  interveniiig^disabilities  should  not  defeat  the  presumption 
of  title  resulting  from  twenty  years  possession.  Tyler  v.  Williamson, 
4  Mason,  402,  Fed.  Cas.  No.  14,312;  2  Kent's  Com.  445;  2  Greenl. 
Ev.  545;  Cross  v.  Lewis,  2  B.  &  C.  686;  Best  on  Presumption,  89; 
Ang.  Watercourses,  235. 

The  point  relative  to  the  award  is  not  insisted  upon,  andjthe  plain- 
tiff'sanswer  to  it  seems  sufficient.    Judgment  on  the  verdict." 


LAMB  V.  CROSLAND. 
(Court  of  Appeals  of  South  Carolina,  1851.    4  Rich.  Law,  536.) 

This  was  an  actiorijm  the  case  for  obstructing  a  ditch. 

The  lands  of  the  parties^jvyere  adjoining.  The  plaintiff's  land,  in 
1817,  belonged  to  her  husband,  one  Alexander  Lamb.  The  defendant's 
land,  then,  belonged  to  one  Bartholomew  Cosnahan.  Near  Lamb's 
house  were  some  ponds,  which,  in  wet  seasons,  were  filled  with  wa- 
terjjind^rodu^ced  sickness.  Lamb  asked  and  obtainedjpennissiqn  froni- 
Cosnahan  to  cut  a  ditch  through  his  land,  for  tlie  purpose  of  draining, 

2Mebane  v.  Patrick,  46  N.  C.  23  (1S53);  Tracy  v.  Atherton,  36  Vt.  503 
(1864);  Ballard  v.  Dommon,  156  Mass.  449,  31  N.  E.  635  (1892);  Scallon  v. 
Manhattan  Ry.  Co.,  1S5  N.  Y.  359,  78  N.  E.  284,  7  Ann.  Cas.  168  (1906),  ace. 


h^Q' 


\i  I. 


J     \ 


^. 


Ch.  2)  PRESCRIPTION  105 

those  ponds.  The  ditch  communicated  with  an  old  ditch,  called  the 
meadow  ditch,  by  which  the  water  passed  off  into  Crooked  Creek.  The 
land  through  which  the  ditch  was  cut  by  Lamb,  was  then  woodland; 
it  had  since  been  cleared.  Tliejditchjiad_been^kej)t  g^^en  a^^^ 
Lamb's  land  ever  since,  and  worked  on  occasionally,  when  it  suited 
the  convenience  of  those  who  owned  the  land.  The  plaintiff  was  in 
possession  of  Lamb's  land.  Lamb  died  in  1836.  No  evidence  of  how 
the  plaintiff"  derived  title  was  given ;  but  it  was  understood,  from  the 
course  of  the  testimony,  that  it  had  been  sold  for  partition,  and  she 
was  the  purchaser.  B.  Cqsnahan  died  in  1820,  leaving  a  widov;  and 
infant  children,  one  of  whom  was  not  of  age  until  1841.  After  his 
death,  the  land  remained  in  the  posses'smn  of  his  widow  and  the  ad- 
ministrator, until  1833,  when  it  was  sold  for  partition,  and  purchased 
by  one  E.  Cosnahan,  who  sold  it  to  one  Feagin  in  1836.  From  him 
it  passed  to  Green.  About  1843,  he  sold  to  Dudley,  and  Dudley  to 
the  defendant.  In_  1847  (in  January ,)_jn  consequence  of  the  lower 
part  of  the  ditch  not  being  kept  sufficiently  open,  four  acres  of  the  Jt' 

defendant's  landTon  the^side  of  the  ditch,  were  too  wet  to  plough.  He 
sent  to  the  plaintiff,  requested  her  to  open  it,  but  she  did  not  do  it. 
In  March  the  defendant  filled  up  the  ditch  with  'dirt  and  logs.  Some 
negotiation  took  place,  and  the  plaintiff  opened  the  ditch,  but  as  it 
turned  out,  not  sufficiently,  for  in  July  there  were  very  heavy  rains, 
and  the  water  ponded  on  the  four  acres,  and  injured  the  growing  crop. 
The  defendant  again  obstructed  the  ditch.  ■  It  remained  so  four  days, 
when  the  plaintiff's  son  removed  the  obstruction.  But  in  these  four 
days,  the  corn  in  the  plaintiff's  pond  was  destroyed.  For  this  injury 
the  action  was^^qught,  an^  the  sole  questiorL presented  by..  the_case 
wasTwhether  theplaihtilf  had  a  prescriptive  right  to  drain  her  land 
through  this  ditch.  If  she  had,  the  defendant  had  no  right  to  ob- 
struct it.  if  she  had  not,  then  the  defendant  had  a  right  to  fill  it  up 
on  his  own  land. 

Evidence  was  given  on  the  question,  whether  the  use  had  been  ad- 
verse, or  only  permissive.  That  question  was  submitted  to  the  jury, 
who  found  for  the  plaintiff. 

In  his  report  of  the  case,  his  Honor,  the  presiding  judge  (Evans,  J.), 
says : 

"It  was  clear,  that  from  1820  to  1833,  the  land  of  defendant_be-._ 
longed  to  infants ;  and  there  was  not  the  sTfghtest  evidence  to  change 
the  original  character  of  the  use,  up  to  the  death  of  B.  Cosnahan.  My 
own  opinion,  founded  on  a  pretty  full  argument,  made  in  the  case 
of  Boykin  v.  Cantey,  which  I  tried  at  Kershaw,  was,  that  the  pre- 
sumption of  title,  arising  from  adverse  use,  did  not  arise  when  the 
owners  were,  at  the  time  of  its  commencement,  infants ;  and  that,  even 
in  cases  of  intervening  infancy,  the  presumption  was  suspended  during 
infancy,  for  the_p^resumption  depends,  not  on  the  use  alone,  but  the 
acquiescence  of  the.owners.  In  this  case,  there  is  no  doubt  about  the 
facts.    The  iisg^ began  in  1817,  and  continued  to  1847,  a  period  of  thirty  •^'^7 


106  ORIGINAL  TITLES  (Part  1 

years.  But  during  the, time,  the  land  belonged  to  infants  tliirteen 
years,  leaving  only  seventeen  years.  Entertaining  this  opinion,  if  1  had 
left  that  point  to  the  jury,  they  of  course  would  have  found  for  tlie 
defendant;  but  I  did  not  feel  at  liberty,  after  having  spent  more  than 
a  day  on  the  trial,  to  arrest  the  case  by  a  nonsuit,  on  an  undecided 
point,  and  one  of  difficult  solution.  The  case  was  sent  to  the  jury  on 
the  other  points,  reserving  to  the  defendant  tlie  right  to  renew  his 
motion  in  the  Appeal  Court." 

The  defendant  appealed,  and  now  moved  for  a  nonsuit,  or  new 
trial,  on  several  grounds ;  tlie  f ourtli  ground  for  a  nonsuit  was  as 
follows : 

Because,  admitting  that  the  plaintiff  had  adverse  possession  for 
twenty-nine  years,  it  was  in  evidence,  that  for  thirteen  years  of  this 
time,  the  proprietors  of  the  servient  tenement  were  infants,  against 
whom  an  adverse  possession  could  not  grow  into  a  right. 

Curia,  per  Evans,  J.  There  are  several  questions  presented  by  the 
brief  in  this  case,  but  as  the  decision  depends  on  the  fourth  ground 
for  a  nonsuit,  none  of  the  otlier  questions  will  be  considered.  That 
ground  is  in  the  following  words,  to  wit,  "admitting  that  the  plaintiff 
had  adverse  possession  for  twenty-nine  years,  thirteen  years  of  this 
time  the  proprietors  of  the  servient  tenement  were  infants,  against 
whom  an  adverse  possession  could  not  grow  into  a  right."  The  facts 
of  the  case,  necessary  to  be  stated  in  order  to  understand  this  ground, 
'    '  are  these. '  In  1817,  tlie  ditch,  which  was  the  subject  of  controversy, 

was  dug  by  Lamb  through  Cosnahan's  land,  by  his  permission  or  con- 
sent, for  the  purpose  of  draining  some  ponds  on  the  land  of  Lamb. 
The  ditch  has  been  kept  open  ever  since,  until  obstructed  by  the  de- 
fendant, who  now  owns  the  land.  In  1820,  Cosnalian  died,  leaving  a 
widow  and  infant  children  his  heirs  at  law,  one  of  whom  was  not  of 
age  until  1841.  In  1833,  the  land  was  sold,  under  a  decree  of  the 
Court  of  Equity,  for  partition,  and  purchased  by  one  E.  Cosnalian, 
from  whom,  by  several  intermediate  conveyances,  the  defendant  de- 
rives his  title. 
.-J  The  g^uest_ion_  arising  on  these  facts  is,  whether  the  plaintiff,  who  is 

the  owner  of  Lamb's  land,  to  drain  which  the  ditch  was  dug,  has 
acquired,  by  the  use  thereof,  a  right  of  drainage  against  the  owners 
of  the  land.  There  is  no  doubt  that,  according  to  our  law,  as  de- 
clared in  a  great  many  cases, (the  adverse  use  of  an  easement  for  twen- 
ty years  will  confer  a  right  to  the  use  of  it,  as  fully  as  if  a  deed  for 
it  w^ere  produced  and  proved.  In  the  ordinary  transactions  of  man- 
kind, we  find  that  men  are  not  disposed  to  allow  others  to  exercise 
dominion  over  their  property.  When,  therefore,  we  find  tliat  such 
dominion  has  been  exercised  for  a  long  period,  without  objection  on 
the  part  of  the  owner,  it  is  reasonable  to  conclude  that  such  use  began 
in  right,  or  it  would  have  been  objected  to.  This  title  is  founded  on 
the  presumption  of  a  grant,  which  time  or  accident  has  destroyed. 
But  this  is  perhaps  a  legal  fiction,  which  the  law  resorts  to,  to  support 


Ch.  2)  PRESCRIPTION  107 

ancient  possessions,  and  to  maintain  what  the  acts  of  the  parties  show 
they  considered  to  exist. 

There  can  be  no  doubt  that,  if  Cosnahan  had  Hved  for  twenty  years 
after  the  use  of  the  ditch  commenced,  and  Lamb  had  used  it  adversely, 
as  the  jury  have  found,  the  right  would  have  been  perfect;  and  I 
suppose  it  equally  clear,  that  if  the  time  before  Cosnahan's  death, 
added  to  the  time  which  elapsed  after  the  sale  in  1833,  together,  made 
the  full  period  of  twenty  years,  the  right  would  be  beyond  dispute. 
For  in  both  cases  there  would  be  an  adverse  use,  and  an  acquiescence 
by  those  laboring  under  no  disability,  for  the  full  period  that  the  law 
requires  to  support,  the  presumption  of  a  grant. 

In  this  case  these  two  periods  of  time  amount  to  only  seven- 
teen years,  and  unless  the  presumption  can  arise  against  the  infants, 
the  twenty  years  is  incomplete. 

In  McPherson  on  Infants,  it  is  said  (p.  538) :  "It  is  a  maxim  of  law, 
that  laches  is  not  to  be  imputed  to  an  infant,  because  he  is  not  sup- 
posed to  be  cognizant  of  his  rights,  or  capable  of  enforcing  them."  In 
Bacon's  Abridg.  title  Infant,  G,  (5  vol.  110,)  last  edition,  it  is  said: 
"The  rights  of  infants  are  much  favored  in  law,  and  regularly  their 
laches  shall  not  prejudice  them,  upon  the  presumption  that  they  un- 
derstand not  their  rights,  and  that  they  are  not  capable  of  taking  no- 
tice of  the  rules  of  law  so  as  to  apply  them  to  their  advantage."  The 
same  doctrine  is  to  be  found  in  all  the  elementary  writers  from  Coke 
to  the  present  time.  The  presumption  arises  from  the  acquiescence 
of  the  parties  interested  to  dispute  it,  and  it  would  be  difficult  to  assign 
a  reason  for  drawing  any  conclusion  from  the  acquiescence  of  an  in- 
fant, who  is  supposed  in  law  not  to  be  cognizant  of  his  rights,  or  capa- 
ble of  enforcing  them.  Accordingly  we  find,  that  in  all  the  cases  which 
have  been  decided^  so  far  as  I  know,  no  presumption  has  been  allowed 
against  the  rights  of  an  infant,  whether  the  question  related  to  the 
satisfaction  of  bonds  for  the  payment  of  money,  or  the  performance 
of  other  acts,  or  to  rights  growing  out  of  what  Best  calls  a  non-exist- 
ing grant.  In  Boyd  v.  Keels,  decided  in  1830,  it  was  held  that  no 
presumption  could  arise  that  the  condition  of  a  bond  of  an  adminis- 
trator had  been  performed,  because  the  distributee,  to  whom  he  was 
to  account  and  pay  over  the  money,  was  an  infant.  The  same  was  af- 
firmed in  the  case  of  Brown  v.  McCall,  3  Hill,  335.  In  Gray  v.  Givens, 
2  Hill,  Eq.  514,  Judge  ^arper  says  :  "I  think  it  has  not  been  questioned, 
that  the  time  during  which  the  party  to  be  affected  has  been  under 
disability,  must  be  deducted  in  computing  the  lapse  of  time,  in  analog)' 
to  the  Statute  of  Limitations.  Such  was  the  case  in  Riddlehoover  v. 
Kinard,  1  Hill,  Eq.  376.  If  the  possession  were  taken  in  early  in- 
fancy, the  title  might  be  matured  before  the  infant  arrived  at  age, 
and  before  the  Statute  of  Limitations  had  begun  to  run  against  him. 
The  decisions  have  been  numerous,  and  the  practice  habitual  and  I  am 
not  aware  of  any  doctrine  or  decision  to  the  contrary." 

We  have  no  case  involving  the  right  to  an  easement,  in  which  the 


108  ORIGINAL  TITLES  (Part  1 

question  involved  in  this  case  has  been  decided  by  this  court.  In  Watt 
V.  Trapp,  2  Rich.  136,  Judge  O'Neall,  on  the  circuit,  expressed  the 
opinion  to  the  jury,  tliat  the  presumption  of  a  grant  to  a  way  would 
be  arrested  by  infancy.  But  that  point  was  not  necessarily  involved 
in  the  case,  and  this  court  declined  to  express  any  opinion,  as,  accord- 
ing to  my  recollection,  it  was  not  argued.  In  otlier  States  the  ques- 
tion has  been  decided.  In  the  case  of  Watkins  v.  Peck,  13  N.  H.  360, 
40  Am.  Dec.  156,  it  was  held,  tliat  a  grant  cannot  be  presumed  from 
the  use  and  enjoyment  of  an  easement  for  the  term  of  twenty  years, 
when  the  party,  who  must  have  made  the  grant  if  it  existed,  was  an 
infant  at  the  time  of  making  it.  This  does  not  come  up  fully  to  the 
case  under  consideration,  because  in  this  case  the  grant,  if  any,  must 
have  been  made  coeval  with  the  use,  and  that  was  in  the  lifetime  of 
Cosnahan,  who  was  adult.  But  that  can  make  no  difference,  unless 
we  apply  the  rule,  which  has  been  acfopted  in  relation  to  some  of  the 
clauses  of  the  Statute  of  Limitations,  viz.,  that  where  the  Statute  be- 
gins to  run,  it  will  not  be  arrested  by  any  intervening  disability.  But 
tETs'has  not  been  contended  for,  and  tliere  is  no  semblance  of  author- 
ity to  support  it.  This  construction  arises  on  a  positive  enactment, 
that  the  action  must  be  within  four  years  from  the  time  the  right  of 
action  accrued;  whereas  presumptions  arise  from  the  assertion  of  the 
right,  and  the  acquiescence  in  it,  during  the  whole  period  of  twenty 
years,  and  how  can  it  be  said  that  the  infants  have  acquiesced,  when 
they  were  incapable  of  asserting  their  rights  ? 

But  the  case  of  IMelvin  v.  Whiting,  13  Pick.  (Mass.)  190,  was  a  case 
of  intervening  infancy.  The  plaintiff  claimed  title  to  a  several  fish- 
ery, on  the  defendant's  soil,  and  relied,  to  support  his  title,  on  proof 
of  an  adverse,  uninterrupted,  and  exclusive  use  and  enjoyment  for 
twenty  years.  The  jury  were  instructed  by  the  Chief  Justice  that,  to 
raise  such  a  presumption  of  conveyance,  it  must  appear  that  such 
exclusive  right  had  been  used  and  enjoyed  against  those  who  were  able 
in  law  to  assert  and  enforce  their  rights,  and  to  resist  such  adverse 
claim,  if  not  well  founded ;  and,  tlierefore,  if  the  persons  against  whom 
such  adverse  right  is  claimed,  were  under  the  disability  of  infancy, 
the  time  during  which  such  disability  continued,  was  to  be  deducted 
in  the  computation  of  the  twenty  years ;  and  this  construction  was  sup- 
ported by  the  Court  of  Appeals.  The  only  dictum  which  I  have  found 
to  the  contrar}^  is  contained  in  the  opinion  of  Judge  Story,  in  the 
case  of  Tyler  v.  Wilkinson,  4  Mason,  402,  Fed.  Cas.  No.  14,312.  The 
action  involved  the  priority  of  right  to  use  the  water  in  Pawtucket 
River,  and  in  no  way  involved  the  question  of  the  rights  of  infants. 
The  question  which  he  was  discussing  was,  whether  the  presumption 
from  adverse  use  was  a  presumptio  juris  et  de  jure,  a  question  of  law 
to  be  decided  by  the  court,  or  a  fact  to  be  determined  by  the  jury.  In 
support  of  his  argument,  that  it  is  a  presumptio  juris,  he  says  the  right 
by  presumption  of  a  grant  is  not  affected  by  the  intervention  of  per- 
sonal disabilities,  such  as  infancy,  coverture,  and  insanity.     This  die- 


Ch.  2)  PRESCKIPTION  X09 

turn  is  noticed  and  disregarded  in  the  New  Hampshire  case  above  re- 
ferred to,  and  I  may  be  permitted  to  say,  without  any  disrespect  to  that 
great  and  learned  judge,  that  he  did  not  bear  in  mind  the  distinction  ^ 

between  a  right  claimed  by  prescription,  and  a  presumption  of  right 
from  a  non-existing-  grant.  The  former  requires  a  use  beyond  legal 
memory7tlTe"latter  may  arise  within  twenty  years.  Best  on  Presump. 
§  88 ;  3  Stark.  Ev.  911,  3d  Ed. ;  2  Ev.  Poth.  139. 

We  are  of  opinion,  that  the  period  of  time^during  which  the  infant 
heirs  of  Cosnahan  were  the  owners~oFTHe  servient  tenement,  is  not 
to  be  computed  as  a  part  of  the  twenty  years'  adverse  use  necessary 
to  vest  the  easement  in  the  plaintiff,  and  upon  this  ground  the  plain- 
tiff should  have  been  nonsuited  on  the  circuit.  It  is  therefore  ordered 
that  the  verdict  be  set  asjdej,  and  the  defendant  have  leave  to  enter 
up  a  judgment  of  nonsuit. 

O'NeaIvL  and  Frost,  JJ.,  concurred.    Motion  granted.* 


£^^  mAjL^^  , 


BAXTER  v.  TAYLOR. 

(Court  of  King's  Bench,  1832.    4  Bam.  &  Adol.  72.) 

Declaration  stated  that  a  certain  close  called  Stoney  Butts  Lane, 
situate  in  the  parish  of  Plalifax  in  the  county  of  York,  was  in  the  pos- 
session and  occupation  of  J.  H.,  J.  E.,  and  J.  A.,  as  tenants  thereof  to 
the_plaintiffj  the  reversion  thereof  then  and  still  belonging  to  the  plain- 
tiff ;  yet  the  defendant,  well  knowing  tlie  premises,  but  contriving  to 
prejudice  and  aggrieve  the  plaintiff  in  his  reversionary  estate  and  in- 
terest, whilst  the  said  close  was  in  the  possession  of  the  said  J.  H.,  J. 
E.,  and  J.  A.,  to  wit,  on,  &c.  wrongfully  and  unjustly,  and  without  tlie 
leave  and  license,  and  against  the  will  of  the  plaintiff,  put  and  placed 
upon  the  said  close  diverse  large  quantities  of  stones,  and  continued 
the  same  for  a  long  space  of  time,  to  wit,  from  thence  hitherto;  and 
also  with  the  feet  of  horses,  and  the  wh^Js^ of  carriages,  spoiled  and 
destroyed  divers  parts  of  the  said  close,  whereby  the  plaintiff  was 
greatly  injured  in  his  rev ersionary_  estate  and  interest  therein.  Plea, 
not  guilty.  At  the  trial  before  Parke,  J.,  at  the  last  assizes  for  the 
county  of  York,  it  appeared  that  the  plaintiff  was  seised  in  fee  of  the 
closes  mentioned  in  the  declaration,  which  he  had  demised  to  tenants ; 
that  the  defendant  had  with  his  horses  and  cart  entered  upon  the  close 
called  Stoney  Butts  Lane ;  and  that  after  notice  had  been  given  him  by 
the  plaintiff  to  discontinue  so  doing,  he  claimed  to  do  so  in  exercise 
of  a  right  of  way.  The  learned  Judge  was  of  opinion,  that  although 
that  might  be  good  ground  for  an  action  of  trespass  by  the  occupier  of 
the  plaintiff's  farm,  it  was  not  evidence  of  any  injury  to  the  reversion- 
ary estate,  and  therefore  that  the  action  was  not  maintainable ;  and  he 

3  See  Saunders  v.  Simpson,  97  Tenn.  382,  37  S.  W.  195  (1896) ;  Hodges  v. 
Goodsyeed,  20  R.  I.  537,  40  Atl.  373  (1898). 


110  ORIGINAL   TITLES  (Part  1 

nonsuited  the  plaintiff,  but  reserved  liberty  to  him  to  move  to  enter  a 
verdict. 

Taunton,  J.  I  think  there  should  be  no  rule  in  this  case.  Young 
V.  Spencer,  10  B.  &  C.  145,  is  not  in  point.  That  vv^as  an  action  on  tlie 
case  in  the  nature  of  wasteby  a  lessor  against  his  ov^^n  lessee,  _Here_ 


the  action  is  by  a  reversioner  against  a  mere  stranger,  and  a  very  differ- 
ent  rule  is  applicable  to  an  action  on  the  case  in  the  nature  of  waste 
brought  by  a  landlord  against  his  tenant,  and  to  an  action  brought  for 
an  injury  to  the  reversion  against  a  stranger.  Jackson  v.  Pesked,  1  M. 
&  S.  234,  shews,  that  if  a  plaintiff  declare  as  reversioner  for  an  injury 
done  to  his  reversion,  the  declaration  must  allege  it  to  have  been  done 
to  the  damage  of  his  reversion,  or  must  state  an  injury  of  such  a  per- 
manent nature  as  to  be  necessarily  prejudicial  thereto,  and  tlie  want  of 
such  an  allegation  is  cause  for  arresting  the  judgment.  If  such  an  alle- 
gation must  be  inserted  in  a  count,  it  is  material,  and  must  be  proved. 
Here  the  evidence  was,  that  the  defendant  went  with  carts  over  the 
close  in  question,  and  a  temporary  impression  was  made  on  the  soil  by 
the  horses  and  wheels ;  that  damage  was  not  of  a  permanent  but  of  a 
transient  nature;  it  was  not  therefore  necessarily  an  injury  to  the  plain- 
tiff's reversionary  interest.  Then  it  is  said  that  the  act  being  accompa- 
nied with  a  claim  of  right,  will  be  evidence  of  a  right  as  against  the 
plaintiff,  in  case  of  dispute  hereafter.  But  acts  of  that  sort  could  not 
operate  as  evidence  of  right  against  the  plaintiff,  so  long  as  the  land 
was  demised  to  tenants,  because,  during  that  time,  he  had  no  present 
remedy  by  which  he  could  obtain  redress  for  such  an  act.  He  could 
not  maintain  an  action  of  trespass  in  his  own  name,  because  he  was 
not  in  possession  of  the  land,  nor  an  action  on  the  case  for  injury  to  the 
reversion,  because  in  point  of  fact  there  was  no  such  permanent  in- 
jury as  would  be  necessarily  prejudicial  to  it;  as,  therefore,  he  had  no 
remedy  by  law  for  the  wrongful  acts  done  by  the  defendant,  the  acts 
done  by  him  or  any  other  stranger  would  be  no  evidence  of  right  as 
against  the  plaintiff,  so  long  as  the  land  was  in  possession  of  a  lessee. 
In  Wood  V.  Veal,  5  B.  &  A.  454,  it  was  held  that  there  could  not  be  a 
dedication  of  a  way  to  the  public  by  a  tenant  for  ninety-nine  years, 
without  consent  of  the  owner  of  the  fee,  and  that  permission  by  such 
tfenant  would  not  bind  the  landlord  after  the  term  expired.  I  think 
therefore  that  the  plaintiff  cannot  maintain  the  present  action ;  and 
there  is  not  doubt  sufficient  to  induce  me  to  think  that  there  ought  to 
be  a  rule  nisi  for  a  new  trial. 

PATTitsoN,  J.  I  am  of  opinion  that  the  nonsuit  was  right.  Young 
V.  Spencer,  10  B.  &  C.  145,  was  not  an  action  by  the  reversioner  against 
a  stranger,  but  by  a  landlord  against  his  tenant.  It  was  an  action  on  the 
case  in  the  nature  of  waste.  To  entitle  a  reversioner  to  maintain  an 
action  on  the  case  against  a  stranger,  he  must  allege  in  his  count,  and 
prove  at  the  trial,  an  actual  injury  to  his  reversionary  interest.  It  is 
said  that  this  action  is  maintainable,  because  the  plaintiff's  title  may  be 
prejudiced  by  a  trespass  committed  under  a  claim  of  right;  but  then  for 


Ch.  2)  PRESCRIPTION  111 

such  an  injury  the  action  must  be  brought  in  the  name  of  the  tenant, 

who  is  the  person  in  the  actual  possession  of  the  land.     It  is  true  the 

landlord  cannot  bring  an  action  in  the  tenant's  name  without  his  assent; 

but  that,  generally  speaking,  would  be  obtained  without  difficulty,  and 

may  be  always  made  matter  of  arrangement  between  the  landlord  and 

his  tenant.     The  landlord  may  even  provide  by  covenant  in  his  lease  ^ 

tha^he  shall  be  allowed  to  .,sue_in_tusjten.ant's  name  for  any  trespass 

committed  on  the  land. 

Parke,  J.  I  am  clearly  of  opinion  that  there  was  no  injury  to  the 
plaintiff's  reversionary  interest;  and  to  entitle  him  to  maintain  this  ac- 
tion it  was  necessary  for  him  to  allege  and  prove  that  the  act  complain- 
ed of  was  injurious  to  his  reversionary  interest,  or  that  it  should  appear 
to  be  of  such  a  perm.anent  nature  as  to  be  necessarily  injurious.  A  sim- 
ple trespass,  even  accompanied  with  a  claim  of  right,  is  not  necessarily 
injurious  to  the  reversionary  estate,  and  what  Lord  Tenterden  said  in 
Young  V.  Spencer,  10  B.  &  C.  145,  must  be  construed  with  reference  to 
the  subject  matter  then  under  consideration,  an  action  on  the  case  in 
the  nature  of  waste  by  a  reversioner  against  his  tenant. 

Rule  refused.*  y  /    / 

'h  „  4^f  ,^      ,'. 

SERJEANT  WILLIAMS'  NOTE  TO  YARD  v.  FORD,  2  Wms. 
Saund.  172,  175 :  "In  Lewis  v.  Price,  Worcester  Spring  Assizes,  1761, 
which  was  an  action  on  the  case  for  stopping  and  obstructing  the  plain- 
tiff's lights,  Wilmot,  J.,  said,  that  where  a  house  has  been  built  forty 
years,  and  has  had  lights  at  the  end  of  it,  if  the  owner  of  the  adjoining 
ground  Jbuilds  against  them  so  as  to  obstruct  them,  an  action  lies ;  and 
this  is  founded  on  the  same  reason  as  when  they  have  been  immemorial, 
for  this  is  long  enough  to  induce  a  presumption  that  there  w^as  originally 
some  agreement  between  the  parties ;  and  he  said  that  twenty  years  is 
sufficient  to  give  a  man  a  title  in  ejectment,  on  which  he  may  recover  the 
house  itself ;  and  he  saw  no  reason  why  it  should  not  be  sufficient  to  en- 
title him  to  any  easement  belonging  to  the  house.  So  in  an  action  on  the 
case  for  stopping  up  ancient  lights,  the  defendant  attempted  to  show 
that'  the  lights  did  not  exist  more  than  sixty  years,  Wilmot,  C.  J.,  said, 
that  if  a  man  has  been  in  possession  of  a  house  with  lights,  belonging 
to  it  for  fifty  or  sixty  years,  no  man  can  stop  up  those  lights;  possession 
for  such  a  length  of  time  amounts  to  a  grant  of  the  liberty  of  making 

4  But  see  Lund  v.  New  Bedford,  121  Mass.  2S6  (1876) ;  Cross  v.  Lewis,  2 
B.  &  C.  686  (1824);  Ballard  v.  Demmon,  156  Mass.  449,  31  N.  E.  635  (1892), 
where  the  user  commenced  less  than  the  prescriptive  period  before  the  ser- 
vient land  v.-as  leased.  See,  also,  Reimer  v.  Stuber,  20  Pa.  458,  59  Am.  Dee. 
744  (1853),  where  the  user  took  place  while  the  servient  land  was  in  the  pos- 
session of  tenants  from  year  to  year. 

A.  owns  lands  in  the  possession  of  B.  under  a  lease  of  99  years.  What 
would  be  the  effect,  as  against  B.,  of  an  adverse  user  for  the  prescriptive 
period?  See  Bright  v.  Walker,  1  Cr.,  M.  &  R.  211  (1834);  Wheaton  v.  Maple 
&  Co.,  [1893]  3  Ch.  48;  Kilgour  v.  Gaddes,  [1904]  1  K.  B.  457;  Wallace  v. 
Fletcher,  30  N.  H.  453  (1855),  supra,  p.  94. 


112 


ORIGINAL  TITLES 


(Part  1 


them ;  it  is  evidence  of  an  agreement  to  make  them.  If  I  am  in  posses- 
sion of  an  estate  for  so  long  a  period  as  sixty  years,  I  cannot  be  dis- 
turbed even  by  a  writ  of  right,  the  highest  writ  in  the  law.  If_mX-E^ 
se^Qn_of  the  house  cannot  be  distu_rbed,_sha]l  I  be  disturbed  in  my 
fights?  It  would  be'absurSr  *  *  *  DougarvTWilson,  Sittings  C. 
^Brr?in.  9  Geo.  iir/ 


3/ 


7- 


WEBB  V.  BIRD. 
(Exchequer  Chamber,  1863.     13  C.  B.  [N.  S.]  841.) 

This  was  a  writ  of  error  upon  a  case  stated  by  an  arbitrator  for  the 
opinion  of  the  Court  of  Common  Pleas,  upon  the  argument  of,  which 
that  Court  held  that  the  owner  of  a  windmill  cannot  claim,_^ther  by 
presjmption^^r^by^resumptjpn  of  arrant  arising  from  twenty  years' 
acquiescence,  to  be  entided  to  the  free  and  uninterrupted  passage  of 
the  curi:£nis.pf  wind  and  air  to  his  mill ;  and  that  such  a  claim  is  not 
within  the  2d  section  of  the  2~^3  W.  IV,  c.  '71,  which  is  confined  to 
rights  of  way  or  other__easements  to  be  exercised  upon  or  over  the 
surface  of  the  adjoining  land. 

WiGHTMAN,  J.,  now  delivered  the  judgment  of  the  Court: 
We  took  time  for  the  consideration  of  this  case  on  account  of  its 
novel  character.  It  appears  by  the  finding  of  the  arbitrator  to  whom 
the  case  was  referred  by  order  of  Nisi  Prius,  that  the  plaintiff  was  the 
owner  and  occupier  of  a  windmill  built  in  1829;  that,  from  the  time 
of  its  being  built,  down  to  1860,  the  occupier  had  enjoyed  as  of  right 
and  without^interruption  the  use  and  benefit  of  a  free  current  of  air 
from  the  west  for  the  working  of  the  mill ;  that,  in  the  last-mentioned 
year,  1860,  the  defendants  erected  a  school-house  within  twenty-five 
yards  of  the  mill,  and  therejjy  obstructed  the  current  of  air  which 
would  have^come  to  it  from~tTie~west,  wherel)y  lli'e  workmg^Ttlie  mill 
was  hindered,  and  the  mill  became  injured  and  deteriorated  in  value. 
Two  cases  were  cited  and  mainly  relied  on  for  the  plaintiff, — one  in 
the  2  Rolle's  Abridgment,  p.  704,  and  the  other  in  16  Viner's  Abridg- 
ment, tit.  Nuisance  (G),  pi.  19 ;  but  both  are  shortly  stated,  and  amount 
to  little  more  than  dicta ;  and  it  does  not  appear  that  they  are  anywhere 
else  reported,  or  in  what  manner  or  the  terms  in  which  such  a  right 
was  claimed,  whether  by  prescription  or  otherwise.  There  is  a  third 
case,  called  Trahern's  Case,  Godbolt  233,  which  was  the  case  of  a  nui- 
sance caused  by  building  a  house  so  near  as  to  hinder  the  working  of 
the  plaintiff's  mill;  and  the  judgment  of  the  Court  appears  in  the  first 
instance  to  have  been  like  that  of  the  case  in  Rolle's  Abridgment,  that 

5  "There  were  two  nisi  prius  decisions  at  an  earlier  day  (Lewis  v.  Price, 
in  1761,  and  Dongal  v.  Wilson,  in  1763);  but  the  doctrine  [that  of  acquisition 
of  easement  of  light  and  air  by  user  for  a  definite  period  of  time]  was  not 
sanctioned  in  Westminster  Ilnll  until  17S6,  when  the  case  of  Darwin  v. 
JDpton  was  decided  by  the  K.  B.  2  Saund.  175.  note  (2).  This  was  clearly  a 
"Hepiarture  from  the  old  law.'TTurv  v.  Pope.  Cro.  Eliz.  118  (1587)."  Brouson, 
J.,  in  Parker  v.  Foote,  19  Wend.  (N.  Y.)  309,  318  (1838). 


Ch.2) 


PEESCEIPTION 


113 


SO  much  of  the  house  should  be  thrown  down  as  hindered  the  working 
of  the  mill.  But,  the  plaintiff  contending  that  the  whole  house  should 
be  thrown  down,  the  case  was  adjourned,  and  no  ultimate  decision  ap- 
pears to  have  been  given.  These  are  all  the  authorities  which  we  have 
been  able  to  find  upon  the  subject. 

We  agree  with  the  opinion  of  the  Court  of  Common  Pleas,  that  the 
right  to  the  passage  of  air  is  not  a  right  to  an  easement  within  the 
meaning  of  the  2  &  3  W.  IV,  c.  71,  §Z  '" 

The  mill  was  built  in  1829,  and  so  the  claim  cannot  be  by  prescrip- 
tion. 

The  distinction  between  easements,  properly  so  called,  and  the  right 
to  light  and  air,  has  been  pointed  out  by  Littledale,  J.,  in  Moore  v. 
Rawson,  3  B.  &  C.  332,  340  (E.  C.  L.  R.  vol.  10),  5  D.  &  R.  234  (E.  C. 
L.  R.  vol.  16). 

It  remains,  therefore,  to  be  considered,  whether,  independently  of 
the  statute,  the  right  claimed  may  be  supported  upon  the  presumption 
of  a  grant  arising  from  the  uninterrupted  enjoyment  as  of  right  for*  a 
certain  term  of  years.  We  think,  in  accordance  with  the  judgment  of 
the  Court  of  Common  Pleas,  and  the  judgment  of  the  House  of  Lords 
in  Chasemore  v.  Richards,  7  House  of  Lords  Cases,  349,  that  the  pre- 
sumption of  a  grant  from  long-continued  enjoyment  only  arises  where 
the  person  against  whom  the  right  is  claimed  might  have  interrupted 
or  prevented  the  exercise  of  the  subject  of  the  supposed  grant.  As  was 
observed  by  Lord  Wensleydale,  it  was  going  very  far  to  say  that  a  man 
must  go  to  the  expense  of  putting  up  a  screen  to  window-lights,  to  pre- 
vent a  right  being  gained  by  twenty  years'  enjoyment.  But,  in  that 
case,  the  right  claimed,  which  was  the  percolating  of  water  under- 
ground, went  far  beyond  the  case  of  a  window.  In  the  present  case, 
it  would  be  practically  so  difficult,  even  if  not  absolutely  impossible,  to 
interfere  with  or  prevent  the  exercise  of  the  right  claimed,  subject,  as 
it  must  be,  to  so  much  variation  and  uncertainty,  as  pointed  out  in  the 
judgment  below,  that  we  think  it  clear  that  no  presumption  of  a  grant, 
or  easement  in  the  nature  of  a  grant,  can  be  raised  from  the  non-inter- 
ruption of  the  exercise  of  what  is  called  a  right  by  the  person  against 
whom  it  is  claimed,  as  a  non-interruption  by  one  who  might  prevent 
or  interrupt  it. 

We  are  therefore  of  opinion  that  the  judgment  of  the  Court  below 
should  be  affirmed. 

Bi^ACKBURN,  J..  I  perfectly  concur  in  the  judgment,  but  wish,  for 
myself,  to  guard  against  its  being  supposed  that  anything  in  the  judg- 
ment affects  the  common-law  right  that  may  be  acquired  to  the  access 
of  light  and  air  through  a  window,  or  to  the  right  to  support  by  an 
ancient  building  from  those  adjacent.  I  agree  with  my  Brother  Willes, 
in  the  Court  below,  that  the  case  of  the  right  to  light,  before  the  statute, 
stood  on  a  peculiar  gi-ound. 

Judgment  affirmed.  "  ' 

Aig.Pbop. — 8  -  >- 


114  OBIGINAL  TITLES  (Part  1 

_„v\/L|firi'"'^  STURGES  v.  BRIDGMAN. 

(Court  of  Appeal  in  Chancery,  1879.     11  Ch.  Div.  852.) 

The  plaintiff  in  this  case  was  a  physician.  In  the  year  1865  hej)ur- 
chased  the  lease  of  a  house  in  Wimpole  Street,  London,  which  he  oc- 
cupied as  his  professional  residence. 

Wimpole  S.tjeetjuns  north  and. souths  and  is  crossed  at  right  angles 
by  Wigmore  Street.  The  plaintiff's  house  was  on  the  west  side  of 
Wimpole  Street,  and  was  second  house  from  the  north  side  of  Wig- 
more  Street.  Behind  the  house  was  a  garden,  and  in  1873  the  plaintiff 
greeted  a  consujtingjrqom  at  the  end  of  the  garden. 

The  defendant  was  a  confectioner  in  large  business  m  Wigmore 
Street.  His  house  was  on  the  north  side  of  Wigmore  Street  and  his 
kitchen  was  at  the  back  of  his  house,  and  stood  on  ground  which  was 
formerly  a  garden  and_abutted  on  tlie  portion  of  the  plaintijflTs  garden 
on  which  he  built  the  consulting-room.  So  that  there  was  nothing 
between  the  plaintift''s  consulting-room  and  tlie  defendant's  kitchen 
but  the  party  wall,  The  defendant  had  in  his  kitchen  twp_ large. marble 
mortars  set  in  brick-work  built  up  to  and  against  the  party-wall  which 
separated  his  kitchen  from  the  plaintiff's  consulting-room,  and  worked 
by  two  large  wooden  pestles  held  in  an  upright  position  by  horizontal 
bearers  fixed  into  the  party-wall.  These  mortars  were  used  for  break- 
ing up  and  pounding  loaf-sugar  and  other  hard  substances,  and  for 
pounding  meat. 

The  plaintiff ^eged  that  when  the  defendant's  pestles  and  mortars 
were  being  used,  the  ^ise  and  vibration  thereby  caused  were  very 
great,  and  were  heard  and  felt  in  the  plaintiff's  consulting-room,  and 
such  noise  and  vibration  seriously  annoyed  and  disturbed  the  plaintiff 
and  materially  interfered  with  him  in  the  practice  of  his  pn)fession. 
In  particular  the  plaintiff  stated  that  the  noise  prevented  him  from  ex- 
amining his  patients  by  auscultation  for  diseases  of  the  chest.  He  also 
found  it  impossible  to  engage  with  effect  in  any  occupation  which  re- 
quired thought  and  attention. 

The  use  of  the  pestles  and  mortars  varied  with  the  pressure  of  the 
defendant's  business,  but  they  were  generally  used  between  the  hours 
10  A.'  M.  and  1  P.  M. 

The  glaintiff  made  several  complaints  of  the  annoyance,  and  ulti- 
mately brought  this  action,  in  which  he  claimed  an  injunction  to  re- 
strain the  defendant  from  using  the  pestles  and  mortars  in  such  man- 
ner as  to  cause  him  annoyance. 

The  defendant  stated  in  his  defence  that  he  and  his  father  had  used 
one  of  the  pestles  and  mortars  in  the  same  place  and  to  the  same  ex- 
tent as  now  for  more  than  sixty  years,  and  that  he  had  used  the  second 
pestle  and  mortar  in  tlie  same  place  and  to  the  same  extent  as  now  for 
more  than  twenty-six  years.    He  alleged  that  if  the  plaintiff  had  built 


Ch.  2)  PRESCRIPTION  115 

his  consulting-room  with  a  separate  wall,  and  not  against  the  wall  of 
the  defendant's  kitchen,  he  would  not  have  experienced  any  noise  or 
vibration ;  and  he  denied  that  the  plaintiff  suffered  any  serious  annoy- 
ance, and  pleaded  a  prescriptive  right  to  use  the  pestl.es  and  mortars 
under  the  2  &  3  Will.  IV,  c.  71. 

Issue  was  joined,  and  both  parties  went  into  evidence.  The  result 
of  the  evidence  was  that  the  existence  of  the  nuisance  was,  in  the  opin- 
ion of  the  court,  sufficiently  proved ;  and  it  also  appeared  that  no  ma- 
terial inconvenience  had  been  felt  by  the  plaintilf  until  he  built  his  con- 
sulting-room. 

1879,  July  1.  Thesiger,  L.  J.,  delivered  the  judgment  of  the  court 
(James,  Baggallay,  and  Thesiger,  L.  J  J.)  as  follows: 

The  defendant  in  this  case  is  the  occupier,  for  the  purpose  of  his 
business  as  a  confectioner,  of  a  house  in  Wigmore  Street.  In  the  rear 
of  the  house  is  a  kitchen,  and  in  that  kitchen  there  are  now,  and  have 
been  for  over  twenty  years,  two  large  mortars  in  which  the  meat  and 
other  materials  of  the  confectionery  are  pounded.  The  plaintiff,  who 
is  a  physician,  is  the  occupier  of  a  house  in  Wimpole  Street,  which 
until  recently  had  a  garden  at  the  rear,  the  wall  of  which  garden  was  a 
party-wall  between  the  plaintiff's  and  the  defendant's  premises,  and 
formed  the  back  wall  of  the  defendant's  kitchen.  The  plaintiff  has, 
however,  recently  built  upon  the  site  of  the  garden  a  consulting-room, 
one  of  the  side  walls  of  which  is  the  wall  just  described.  It  has  been 
proved  that  in  the  case  of  the  mortars,  before  and  at  the  time  of  ac- 
tion brought,  a  noise  was  caused  which  seriously  inconvenienced  the 
plaintiff  in  the  use  of  his  consulting-room,  and  which,  unless  the  de- 
fendant had  acquired  a  right  to  impose  the  inconvenience,  would  con- 
stitute an  actionable  nuisance.  The  defendant  contends  that  he  had 
acquired  the  right,  either  at  common  law  or  under  the  Prescription  Act,, 
by  unmterrupte^  user  for  more  than  twenty  years. 

In  deciding  this  question  one  more  fact  is  necessary  to  be  stated. 
Prior  to  the  erection  of  the  consulting-room  no  material  annoyance  or 
inconvenience  was  caused  to  the  plaintiff  or  to  any  previous  occupier 
of  the  plaintiff's  house  by  what  the  defendant  did.  It  is  true  that  the 
defendant  in  the  7th  paragraph  of  his  affidavit  speaks  of  an  invalid 
lady  who  occupied  the  house  upon  one  occasion,  about  thirty  years  be- 
fore, requesting  him  if  possible  to  discontinue  the  use  of  the  mortars 
before  eight  o'clock  in  the  morning;  and  it  is  true  also  that  there  is 
some  evidence  of  the  garden  wall  having  been  subjected  to  vibration, 
but  this  vibration,  even  if  it  existed  at  all,  was  so  slight,  and  the  com- 
plaint, if  it  could  be  called  a  complaint,  of  the  invalid  lady,  and  can  be 
looked  upon  as  evidence,  was  of  so  trifling  a  character  that,  upon  the 
maxim  de  minimis  non  curat  lex,  we  arrive  at  the  conclusion  that  the 
defendant's  acts  would  not  have  given  rise  to  any  proceedings  either 
at  law  or  in  equity.  Here  then  arises  the  objection  to  the  acquisition 
by  the  defendant  of  any  easement.    That  which  was  done  by  him  was 


116  ORIGINAL  TITLES  (Part  1 

in  its  nature  such  that  it  could  not  be  physically  interrupted ;   it  could 
.-  not  at  the  same  time  be  put  a  stop  to  by  action.    Can  userwhich  is  nei- 

^  ther  preventable  nor  actionable  found  an  easement?     We  think  not. 

The  question,  so  far  as  regards  this  particular  easement  clainiedTls 
the  same  question  whether  tlie  defendant  endeavors  to  assert  his  right 
by  common  law  or  under  the  Prescription  Act.  That  Act  fixes  periods 
for  the  acquisition  of  easements,  but,  except  in  regard  to  the  particu- 
lar easement  of  light,  or  in  regard  to  certain  matters  which  are  im- 
material to  the  present  inquiry,  it  does  not  alter  the  character  of  ease- 
ments, or  of  the  user  or  enjoyment  by  which  they  are  acquired.  This 
being  so,  the  law  governing  the  acquisition  of  easements  by  user  stands 
thus :   Consent  or  acquiescence  of  the  owners  of  the  servient  tenement 

^  lies  at  the  root  of  prescription,  and  of  the  fiction  of  a  lest  grant,  and 

Tience  the  acts  or  user,  which  go  to  the  proof,  of  either  the  one  or  the 
other,  must  be,  in  tlT,e  language  of  the  civil  law,  nee  vi  nee  clam  nee 
precario;  for  a  man  cannot,  as  a  general  rule,  be  said  to  consent  to  or 
acquiesce  in  the  acquisition  by  his  neighbor  of  an  easement  through  an 
enjoyment  of  which  he  has  no  knowledge,  actual  or  constructive,  or 
which  he  contests  and  endeavors  to  interrupt,  or  which  he  temporarily 
licenses.  It  is  a  mere  extension  of  the  same  notion,  or  rather  it  is  a 
principle  into  which  by  strict  analysis  it  may  be  resolved,  to  hold,  that 
an  enjoyment  which  a  man  cannot  prevent  raises  no  presumption  of, 

y-  consent  or  acquiescence.    Upon  this  principle  it  was  decided  in  Webb 

V.  Bird,  13  C.  B.  (N.  S.)  S41,  tliat  currents  of  air  blowing  from  a  par- 
""ticular  quarter  of  the  compass,  and  in  Chasemore  v.  Richards,  7  H. 
L.  C.  349,  that  subterranean  water  percolating  through  the  strata  in  no 
known  channels,  could  not  be  acquired  as  an  easement  by  user;  and 
in  Angus  v.  Dalton,  4  Q.  B.  D.  162,  a  case  of  lateral  support  of  build- 
ings by  adjacent  soil,  which  came  on  appeal  to  this  court,  the  principle 
was  in  no  way  impugned,  although  it  was  held  by  the  majority  of  the 
court  not  to  be  applicable  so  as  to  prevent  the  acquisition  of  that  par- 
ticular easement.*^  It  is  a  principle  which  must  be  equally  appropriate 
to  the  case  of  affirmative  as  of  negative  easements ;  in  other  words,  it 
is  equally  unreasonable  to  imply  your  consent  to  your  neighbor  enjoy- 
ing something  which  passes  from  your  tenement  to  his,  as  to  his  sub- 
jecting your  tenement  to  something  which  comes  from  his,  when  in 
both  cases  you  have  no  power  of  prevention. 

&Lit_the_^ffirmative  easernent  differs,  from  jthe  negative__easement  in 
this,  that  the  latter  can  under  no  circumstances  be  interrupted  except 
by  acts  done,  upon  the  servient  tenement ;  but  the  former,  constituting, 
as  it  does,  a  direct  interference  with  the  enjoyment  by -the  servient 
owner  of  his  tenement,  may  be  the  subject  of  legal  proceedings  as 
well  as  of  physical  interruption.  To  put  concrete  cases,  the  passage  of 
lightand  air  to  your  neighbor's  windows  may  be  physically  interrupt- 

6  See  the  same  case  in  the  House  of  Lords.    6  App.  Cas.  740  (1S81). 


Ch.  2)  PEESCRIPTION  117 

ed  by  you,  but  gives  you  no  legal  grounds  of  complaint  against  him. 
The  passage  of  water  from  his  land  on  to  yours  may  be  physically  in- 
terruptedj.or  may  be  treated  as  a  trespass  and  made  tlie  ground  of  ac- 
tion for  damages,  or  for  an  injunction,  or  both.  J^oise  is  similar  to 
currents  o±  air  and  the  flow  of  subterranean  and  uncertain  streams  m 
its  practical  incapability  of  physical  interruption,  but  it  differs  from 
them  in  its  capability  of  grounding  an  action.  Webb  v.  Bird  and 
Chasemore  v.  Richards  are  not,  therefore,  direct  autliorities  governing 
the  present  case.  They  are,  however,  illustrations  of  the  principle 
which  ought  to  govern  it ;  for  until  the  noise,  to  take  this  case,  became 
an_actionaj3le_iiuisaJ!cej_which  it  did  not  at  any  time  before  the  consult- 
ing-room, was  built,  the  basis  of  the  presumption  of  the  consent^  viz.,  the 
power    of    prevention    physically    or_.  by    action,    was    never    pres- 

A'    *    *    *  J^^.^6t^ 

HUBBARD  V.  TOWN. 
(Supreme  Court  of  Vermont,  1860.    33  Vt.  295.) 

PiERPOiNT,  J.^  This  action  is  brought  to  recover  the  damage  claim- 
ed to  have  been  sustained  bv  the  plaintiff  in  consequence  of  the  defend- 
ant's obstructing  his  lights. 

It  appears  from  the  case  that  the  building  which  has  been  owned 
and  occupied  by  the  plaintiff  and  his  tenants  for  more  than  twenty- 
five  years  prior  to  the  acts  complained  of,  stands  upon  the  line  between 
his  premises  and  the  premises  of  the  defendant,  and  that  the  defendant 
has  owned  and  occupied  his  premises  during  the  aforesaid  period; 
that  the  windows  in  the  plaintiff's  building  opened  out  toward  the 
premises  of  the  defendant,  admitting  light  from  that  direction,  and  that 
they  have  so  remained  without  obstruction,  and  without  question  on 
the  part  of  the  defendant  for  the  period  ojLtwentyj^fiye  years_or  more;  , 
that  in  1859  the  defendant  e_reci£d-a.-b.uilding^ on  his„owrL  premises 
immediately  adjoining  that  of  the  plaintiff,  so  as  to  excludethe^light 
from  two  of  the  plaintiff's  windows. 

The^nl)r  question  involved  in  this  case  is,  whether  the  plaintiff  by 
such  long~aiid  umnterrupjted  use  of  his  windows,  and  tlie  light  passing 
through  them,  has^thereb}'  acquired  the  right  so  to  continue  his  win- 
dows and  thus  to  have  the  light  pass  through  them,  so  that  any  act  of 
the  defendant  which  shall  materially  obstruct  such  light,  will  make  him 
a  wrong  doer,  and  liable  for  any  damage  to  the  defendant  that  may 
ensue  therefrom. 

The  rulg.  seems  now,  to  be  well  settled  in  England,  that  such  long 
nd  uninterrupted  use  of  light,  gives  the  right  to  continue'  its  use,  and       oj^^^ 


1  The  balance  of  the  opinion  is  omitted. 

8  The  statement  of  facts  is  omitted.     The  case  sufficiently  appears  from 
the  opinion. 


118  ORIGINAL  TITLES  (Part  1 

to  insist  upon  its  remaining"  unobstructed  by  the  adjoining  proprietor 
for  all  time.  The  courts  place  this  upon  the  same  grounds  as  rights 
"of  way,  and  other  rights  acquired  in  and  over  tlie  premises  of  another 
by  long  and  undisturbed  use ;  presuming  from  the  long  exercise  of  the 
privilege  by  tlie  one  and  an  acquiescence  tlierein  by  the  other,  tliat  the 
right  had  its  origin  in  a  grant. 
^"  ^hile  the  general  doctrine  has  been  universally  adopted  in  this 
country,  its  application  to  cases  of  this  kind  has  not  been  generally 
recognized,  and  in  many  of  the  States  has  been  expressly  denied. 
'^""Our  statute  of  limitations  cannot  be  brought  in  aid  of  the  plaintiff's 
tlaim.  The  statute  in  terms  only  deprives  the  aggrieved  party  of  the 
right  of  action  after  the  limited  period  from  the  time  the  cause  of  ac- 
tion accrues,  and  although  our  courts  have  held  that  the  exercise  of  the 
right  by  one  party,  and  an  acquiescence  therein  by  the  other,  for  such 
period,  vests  in  the  party  so  exercising  it  an  absolute  right,  still  in  de- 
termining the  question  whether  such  right  has  in  fact  become  an  ab- 
solute one,  the  time  that  the  one  has  so  exercised  it,  is  to  be  computed 
from  the  period  when  a  cause  of  action  therefor  first  accrued  to  the 
other,  which  he  has  omitted  to  enforce ;  so  that  no  right  can  be  lost  or 
acquired  by  virtue  of  the  statute,  where  there  has  been  no  act  done  by 
the  one,  for  which  the  law  gives  a  remedy  by  action  to  the  other ;  and 
it  is  conceded  in  this  case  that  the  defendant  had  no  right  of  action 
against  the  plaintiff  for  any  act  of  his,  in  erecting  his  building  and 
opening  and  continuing  his  windows,  on  the  side  adjoining  to,  and 
overlooking  the  defendant's  premises. 

This  reason  would  seem  to  apply  with  equal  force,  against  the  plain-: 
tiff's  right  to  recover  on  the  ground  that  a  grant  will  be  presumed  f romi 
lapse  of  time  to  sustain  his  claim.  •---- 

The  principle  upon  which  a  grant  is  presumed  is  that  in  no  other 
way  can  the  acts  of  tlie  parties  be  rationally  accounted  for.  Such  pre- 
sumption is  required  to  account  for  the  exercise  of  the  right  by  the 
oi^e,  and  the  acquiescence  therein  by  the  other,  for  so  long  a  period. 

The  right  must  be  exercised  adversely  or  under  a  claim  of  a  right  so 
to  exercise  it,  by  the  one,  and  it  must  be  acquiesced  in  by  the  other. 

This  of  itself  presupposes  that  the  exercise  of  the  right  by  the  one,_ 
without  a  grant,  is  a  violation  of  some  right  of  the  other ;   otherwise  it 
could  not  be  adverse,  within  the  meaning  of  the  rule;  neither  could  the 
other  acquiesce,  for  that  presupposes  a  legal  right  to  object  and  re- 
sist. 

If  then  there  is  no  violation  of  the  rights  of  another,  no  presujnptiqn, 
of  a  grant  by  sucE  other  arises;  there  is  no  occasion  for  it.    There  is 
no  right  exercised  or  claimed  by  the  one,  that  belongs  to  the  other,  or 
which  he  could  grant,  if  he  should  attempt  it. 

How  then  can  this  doctrine  of  presumption  apply  to  a  case  like  the 
present?  The  erection  of  the  building  by  the  plaintiff  on  the  line  be- 
tween him  and  the  defendant  was  no  violation  of  any  right  of  the  de- 


Ch.  2)  PEESCJBIPTION  119 

fendant;  he  could  not  complain  of,  or  prevent  it,  and  his  assent  or 
dissent  could  in  no  manner  atfect  the  transaction.  The  legal  right  to 
do  the  act  was  perfect  in  the  plaintiff.  His  right  to  erect  his  building 
on  the  division  line  is  not  controverted,  the  wisdom  of  the  act  is  more, 
questionable.  He  might  haVe  made  his  walls  solid,  thus  entirely  ex- 
cluding the  light  from  that  direction;  he  chose  to  leave  apertures 
therein :  thereby  allowing  the  light  to  remain  unaffected  to  that  ex- 
tent; but  how  can  it  be  said  that  by  excluding  the  greater  part,  he 
acquires  any  better  right  to  the  remainder,  than  he  would  have  had  to 
the  whole,  if  he  had  not  excluded  any  ?  He  has  not  done  any  act  which 
has  had  any  effect  to  control  or  influence  the  light,  except  to  exclude 
it.  He  did  not^draw  or  cause  the  light  to  pass  in  upon  his  pr_enn_ses  in, 
any  other  than  its  natural  manner ;  it  remained  upon  and  over  the  de- 
fendant's premises  as  it  had  always  been.  As  there  was  no  interfer- 
ence with  the  rights  of  the  defendant,  it  is  difficult  to  see  upon  what 
the  presumption  of  a  grant  can  be  based.  Lapse  of  time  and  the  pre- 
sumption^ arising  therefrom  are  resorted  to,  only  to  justify  in  one,  that 
which  would  otherwise  be  a  usurpation  of  the  rights  of  another. 

If  a  man  can  acquire,  by  use,  a  right  to  an  uninterrupted  enjoyment 
of  light  under  circumstances  like  the  present,  why  not  acquire  a  right 
to_A_lilie  .enjoyment  of  the  prospect  from  the  same  windows,  or  to  a 
free  access  of  the  air  to  the  outside  of  his  building  to  prevent  decay, 
and  many  other  rights  of  a  similar  and  no  more  ethereal  character? 
The  result  of  which  would  be,  if  allowed,  an  utter  destruction  of  the 
value  of  the  adjoining  land  for  building  purposes. 

Windows  are  often  of  more  importance  for  the  prospect  they  afford, 
than  for  the  light  they  admit.  The  light  may  be  obtained  from  other 
directions,  the  prospect  cannot,  A  pleasant  prospect  from  the  windows 
of  a  dwelling,  always  contributes  more  or  less  to  the  enjoyment  of  the 
occupants,  and  often  enters  largely  into  its  pecuniary  estimate.  But  to 
admit  that  a  mere  enjoyment  of  such  prospect  for  fifteen  years,  gives 
him  the  right  to  insist  that  it  shall  remain  uninterrupted  for  all  future 
time,  would  be  to  recognize  a  principle  at  variance  with  well  establish- 
ed rules,  and  one  that  could  not  be  tolerated  in  this  country. 

No  such  right  can  be  acquired  by  use  for  the  same  reason  that  its 
exercise  by  one  is  no  infringement  of  the  rights  of  another,  for  which  jd^ 

the  law  gives  an  action.  Le  Blanc,  J.,  in  Chandler  v.  Thompson,  3 
Camp.  82,  says,  that  although  an  action  for  opening  a  window  to  dis- 
turb the  plaintiff's  privacy,  was  to  be  read  of  in  the  books,  he  had 
never  known  such  an  action  to  be  maintained,  and  that  he  had  heard 
it  laid  down  by  Eyre,  Ch.  J.,  that  such  an  action  did  not  he. 

We  think  the  English  courts,  in  applying  the  doctrine  of  the  pre- 
sumption of  grants  from  long  use  and  acquiescence  to  this  class  of 
cases,  clearly  departed  from  the  ancient  common  law  rule  as  laid  down 
in  Berry  v.  Pope,  Cro.  Eliz.  118,  and  the  error  as  it  seems  to  us,  con- 
sists in  placing  cases  Hke  the  present  upon  the  same  footing  and  mak- 


120  OEIGINAL  TITLES  (Part  1 

ing  them  subject  to  the  same  rules  that  govern  another  class  of  cases, 
to  which  they  really  have  no  analogy.  In  ^ewis  v.  Price,  Wilmot,  J^,  j^j 
said  "that  when  a  house  had  been  built  forty  years  and  has  had  lights 
at  the  end  of  it,  if  the  owner  of  the  adjoining  ground  builds  against 
them  so  as  to  obstruct  them,  an  action  lies ;  and  this  is  founded  on  the 
same  reason  as  where  they  have  been  immemorial,  for  this  is  long 
enough  to  induce  a  presumption  that  tliere  was  originally  some  agree- 
ment between  the  parties,  and  that  twenty  years  was  sufficient  to  give 
a  man  a  title  in  ejectment  on  which  he  may  recover  tlie  house  itself, 
and  he  saw  no  reason  why  it  should  not  be  sufficient  to  entitle  him  to  an 
easement  belonging  to  the  house." 

As  we  have  already  seen,  no  presumption  of  an  agreement  arises, 
as  none  was  necessary  to  justify  tlie  act.  The  man  who  occupies  his 
own  house  for  twenty  years  has  no  better  title  to  it  at  the  end  of  that 
time,  than  he  had  in  the  outset.  Does  he  acquire  any  greater  right  to 
the  light  by  the  occupation  than  to  the  house?  Clearly  not;  having 
usurpednprighthe  can  acquire  none  by  lapse  of  time..  The  error  in 
the  reasoning  is,  in  saying  that  because  the  man  who  takes  possession 
of  his  neighbor's  house  and  holds  it  adversely  for  twenty  years  (his 
neighbor  acquiescing  therein,)  acquires  a  title  to  it,  therefore  the  man 
who  opens  windows  in  his  own  house  that  in  no  way  interferes  with 
the  rights  of  his  neighbor,  and  of  which  such  neighbor  has  no  legal 
right  to  complain,  and  keeps  them  open  for  twenty  years,  thereby  ac- 
quires a  right  to  insist  tliat  no  act  shall  be  done  by  his  neighbor  on  his 
own  land,  that  in  any  respect  interferes  with,  or  obstructs  the  light  to 
those  windows.  In  the  one  case  there  is  an  infringement  of  the  rights 
of  another  for  which  the  law  gives  a  remedy  by  action;  in  the  other 
there  is  not.  This  constitutes  a  radical  dilterence  between  the  two 
caseSj  and  that  too  in  respect  to  the  very  point  upon  which  the  whole 
doctrine  of  presumption  in  cases  like  those  under  consideration  de- 
pends. 

It  might  be  urged  with  much  force  that  a  man  who  conveys  a  house 
with  the  privileges,  etc.,  would  not  have  a  right  to  make  an  erection  on 
his  own  land  adjoining,  that  would  shut  out  the  light  from  the  Vv^ndows 
in  the  house  so  conveyed,  and  it  may  be  said  that  he  who  has  occupied 
another's  house  for  such  length  of  time  and  under  such  circumstances 
that  a  grant  will  be  presumed,  stands  upon  the  same  footing  as  an  ordi- 
nary grantee.  However  that  may  be,  this  case  involves  no  such  ques- 
tion. In  those  cases  the  question  turns  upon  the  fact  that  the  title  to 
the  premises  was  derived  by  deed  actual  or  presumed,  from  the  party 
who  seeks  to  deprive  his  grantee  of  the  enjoyment  of  the  right  he  has 
conveyed.  The  right  does  not  depend  upon  the  lapse  of  time,  but  is  as 
perfect  in  the  grantee  the  moment  the  deed  is  executed  as  it  can  ever 
iie^i  Here  the  title  to  the  premises  of  the  plaintifl:  was  never  in  the  de- 

^fendant,  but  has  been  in  the  plaintiff  through  the  whole  period. 

\       This  question  was  fully  considered  in  New  York  in  tlie  case  of 


Ch.  2)  PBESCRIPTION  121 

Parker  v.  Foote,  19  Wend.  (N.  Y.)  309,  Bronson,  J.,  says :  "Upon  what 
principle  courts  in  England  iiave  applied  the  same  rule  of  presumption, 
to  two  classes  of  cases  so  essentially  different  in  character,  i  have  been 
unable  to  discover.  If  one  commit  a  daily  trespass  on  tlie  land  of 
another  under  a  claim  of  right  to  pass  over,  or  feed  his  cattle  upon  it, 
or  divert  the  water  from  his  mill,  or  throw  it  back  upon  his  land  or 
machinery,  in  tliese  and  the  like  cases,  lon^  continued  acquiescence 
affords  strong  presumption  of  right.  T~But  in  the  case  of  lights  there  is 
no  adverse  user,  nor  indeed  any  use  whatever  of  another's  property, 
and  no  foundation"  is  laid  for  indulging  any  presumption  against  tlie 
rightful  owner."  And  again  he  says :  "There  is  no  principle  I  think, 
upon  wdiich  the  modern  English  doctrine  of  ancient  lights  can  be  sup- 
ported." 

The  same  doctrine  was  held  in  Pierce  v.  Fernald,  26  Me.  436,  46 
Am.  Dec.  573,  and  in  Napier  v.  Bui  winkle,  5  Rich.  (S.  C.)  312,  in  both 
of  which  cases  the  subject  was  fully  discussed. 

We  see  no  reasons  growing  out  of  the  nature  or  necessities  of  this 
class  of  cases,  that  require  us  to  extend  the  doctrine  of  the  presump- 
tion of  grants  to  them,  but  on  the  other  hand,  the  establishment  of  a 
rule  that  would  require  a  man  to  erect  a  building  or  wall,  that  he  did 
not  need,  on  his  own  premises,  for  the  sole  purpose  of  excluding  the 
light  from  his  neighbor's  windows,  would  lead  to  continual  strife  and 
bitterness  of  feeling  between  neighbors,  and  result  in  great  mischief. 

The  judgment  of  tlie  county  court  is  affirmed." 


^^MPAVEY  V.  VANCE.  ^ 


(Supreme  Court  of  Ohio,  1897.    56  Ohio  St  162,  46  N.  B.  898.) 

Error  to  Circuit  Court,  Highland  County.  ^ . 

Suit  was  brought  by  D.  J.  Vance  and  others  to  enjoin  the  defendant. 
A.  E.  Pavey,  from  closing  up  a  certain  wa^iised  by  the  plaintiffs  over 
his  land,  which  they  claimed  as  appendant  to  their  land.  The  defends 
ant  denied  the  right.  The  case  was  appealed  to  the  circuit  court,  where 
at  the  trial  on  the  issues,  the, court,  at  the  request  of  the  defendant,  made 
a  finding  of  the  facts  and  its  conclusions  of  law  separately.  The 
finding  of  facts  is  as  follows : 

"That  the  pjaintiffs  are  the  owners  in  fee  simple  of  the  lands  de- 
scribed as  theirs  in  the  petition,  and  that  the  defendant  is  the  owner 
of  the  lands  set  out  in  the  petition  as  his ;   that  the  plaintiffs  acquired 

9  As  to  the  somewhat  analogous  situation  where  the  easement  of  lateral 
support  is  claimed  by  prescription,  see  Richart  v.  Scott,  7  Watts  (Pa.)  460,  32 
Am.  Dec.  779  (1838);  Mitchell  v.  Rome,  49  Ga.  19,  15  Am.  Rep.  669  (1873); 
Tunstall  v.  Christian,  SO  Va.  1,  56  Am.  Rep.  581  (1SS5) ;  Sullivan  v.  Zeiner, 
^^  ^^'^■I'.^^  ^^  ^^^-  2^^'  -^  ^''  ^-  ^-  "^30  (1S93) ;  Angxis  v.  Dalton,  8  Q.  B  D 
85  (ISTTT^Q.  B.  D.  1G2  (1878),  6  App.  Cas.  740  (1881);  Solomon  v.  Vintners' 
Co.,  4  H.  &  N.  585  (1859). 


122  ORIGINAL  TITLES  (Part  1 

the  legal  title  from  D.  J.  Vance;  that  D.  J.  Vance  had  occupied  the 
lands  from  A.  D.  1857;  that  the  defendant  acquired  the  title  to  his 
lands  from  Penelope  Evans,  who  acquired  it  from  Benjamin  Barrere, 
now  deceased;  that  defendant  had  notice  after  he  contracted  to  buy 
said  premises,  and  before  his  acceptance  of  the  conveyance  to  him  from 
^vans,  that  D.  J.  Vance  claimed  the  right  of  way  contended  for  by 
the  plaintiffs  in  this  suit;  that,  for^mqrethan  twenty-one  years  prior 
to  the  acquiring  of  title  by  defendant  of  the  lands  from  Penelope  Ev- 
ans,  D.  J.  Vance  and  his  family,  in  going  to  and  from  his  farrn  and. 
dwelling  to  the  turnpike^jeading  from  Hillsboro  to  New  Market,  and_ 
others  going  to  and  from  said  pike  to  Vance's,  had  passed  over  the, 
lands  of  defendant,  using  a  way  or  road  through  defendant's  farm 
as  a  foot  way,  wagon  way,  carriage  way,  and  for  hauling  produce  to 
and  from  said  Vance's  farm,  and  horseback  way,  without  let  or  hin- 
drance or  obstruction  from  Benjamin  Barrere  in  his  lifetime,  or  Pen- 
elope Evans,  or  their  tenants ;  that  said  road  was  used  by  said  Bar- 
rere and  his  successors  in  ownership,  during  all  of  said  period  of  time, 
as  a  farm  road  through  his  farm  from  the  pike  to  the  dwelling  house 
on  the  D.  J.  Vance  farm,  and  to  the  back  part  of  the  farm  to  the 
farm  line  of  said  Vance,  said  entire  farm  being  inclosed  during  all 
of  said  period  of  time,  being  inclosed  by  fences  and  gates;  that  the 
Vances,  and  also  the  owners  and  occupants  of  defendant's  lands,  used 
said  way  whenever  they  saw  fit,  and  was  also  used  as  one  of  the 
means  of  approach  (but  not  the  only  road)  to  the  Vance  farm  and 
house,  and  for  departure  therefrom,  to  and  from  the  said  turnpike, 
and  was  so  used  by  said  Vances  and  those  going  to  and  from  the 
Vance  place,  without  asking  leave  of  the  occupants  of  defendant's 
farm  and  without  objection, 

"The  said  roadway  is  described  as  follows :  Beginning  in  the  line  of 
the  land  of  defendant  and  land  of  Jesse  and  Elizabeth  McConnaughey 
(formerly  owned  by  Benj.  Barrere);  running  thence  a  northwesterly 
course  over  the  lands  of  said  defendant,  Pavey,  and,  crossing  a  branch 
of  Rocky  Fork  creek,  passes  by  the  dwelling  house  on  the  lands  of  said 
Pavey,  and  continued  a  northwesterly  course  to  the  said  Ripley  turn- 
pike, at  a  point  about  twenty-seven  rods  southwest  of  the  schoolhouse 
on  said  turnpike  known  as  the  'Kansas  Schoolhouse,'  there  being 
three  gates  on  said  roadway,  viz.  one  gate  at  the  pike,  one  at  the 
Pavey  dwelling  house,  and  one  at  the  line  between  the  lands  of  the 
defendant  and  said  Jesse  and  Elizabeth  E.  McConnaughey,  and  the 
length  of  said  right  of  way  from  where  it  enters  that  land  of  said 
Pavey  to  its  termination  at  said  turnpike  being  about  116  rods.  fThe 
court  further  finds  that  the  defendant,  A.  E.  Pavey,  obstructed*  said 
roadway  in  the  spring  of  A.  D.  1893,  prior  to  the  bringing  of  this  suit, 
by  erecting  a  fence  across  the  same,  and  ever  since  preventing  the 
Vajices'  passing  over  the  same,  in  vehicles  and  on  horseback." 

^he  court  found  as  a  matter  of  law  from  these  facts  that  the  plain- 
tiffs were  the  owners  of  a  right^  of  way  by  prescription  over  the  lands 


Ch.  2)  PRESCRIPTION  123 

of  the  defendant,  and  rendered  judgment  for  the  relief  prayed  for, 
enjoined  the  defendant  from  obstructing  the  way,  other  than  by  the 
use  of  gates  as  before  maintained,  and  ordered  the  removal  of  the  ob- 
structions. The  defendant  excepted  to  the  court's  conclusions  of 
law  and  judgment  on  the  facts,  and  prosecutes  error  here  for  a  re- 
versal of  the  judgment,  on  the  ground  that  it  is  not  supported  by  the 
^facts. 

MiNSHALL,  J.  (after  stating  the  facts).    The  plaintiff  in  error  claims 
that  the  court  erred  in  its  judgment  because  it  does  not  appear  from 
its  finding  that  the  way  was  used  for  the  requisite  period  adversely 
to  the  defendant  and  his  predecessors  in  title,  and  under  a  clajm  of. 
right,  nor  is  it  found  that  it  was  not  permissive.     The  court  found; 
that,   for  more  than  21  years  prior  to  the  time  the  defendant  ac- 
quired his  title  to  the  land,  D.  J.  Vance,  the  predecessor  in  title  of  the 
plaintiffs,  and  his  family,  "in  going  to  and  from  his  farm  and  dwelling 
to  the  turnpike,  and  others  going  to  and  from  said  pike  to  Vance's,  ' 
have  passed  over  the  lands  of  defendant,  using  a  way  or  road  through 
defendant's  farm  as  a  foot  way,  wagon  way,  carriage  way,  horseback 
way,  and  for  hauling  produce  to  and  from  said  Vance's  farm,  without 
let  or  hindrance  or  obstruction"   from  the  defendant's  predecessors 
in  title. 

The  plaintiffs'  claim  is  based  on  a  title  by  prescription  to  the  road- 
way on  the  facts  found.  ^Easements  of  all  kinds  are  said  to  lie  in 
^rarTt7~c[nd^'"Tiot  in  livery ;  "  for  the  reason  that,  according  to  feudal 
ideas,  they  could  not  be  created  by  livery,  as  livery  would  destroy  the 
seisin  of  the  owner  of  the  land  subject  to  the  easement.  But  as  a 
right  to  that  which  an  individual  has  long  used  and  enjoyed  as  his  own 
without  disturbance  has  ever  been  agreeable  to  a  sense  of  natural 
justice,  the  courts  of  England  at  an  early  day  adopted  the  fiction  of  a 
lost  jeed  in  support  of  easements  that  had  been  enjoyed  by  the  owner 
^f  the  dominant  estate  and  those  under  whom  he  claimed  for  a  period 
beyond  the  memory  .Qi,jnani__Thiswa.s_first^fi2ced  at  a  time  beyond 
the  reign  of  Richard  I.  But,  by  reason  of  the  remoteness  of  the  period, 
the  proof  became  more  and  more  difficult,  if  not  impossible ;  and 
finally  the  courts  adopted  a  shorter  period  of  20  years,  in  analogy  ,to 
the  limitation  in  possessory  actions.  Still  in  this  state  of  the  law, 
as  the  title  rested  upon  the  presumption  of  a  lost  deed,  the  courts  held 
that  it  might  be  rebutted,  so  that  long  possession  still  continued  subject 
to  this  contingency,  and  might  be  overthrown  by  a  showing  that  it  com- 
menced and  continued  without  deed. 

This,  however,  is  no  longer  the  general  doctrine.  Washb.  Easem. 
(4th  Ed.)  130-135;  Railroad  Co.  v.  McFarlan,  43  N.  J.  Law,_605 ; 
Tracy  v.  Atherton,  36  Vt.  503.  I  Where  an  easement,  as  a  way,  is  nowl 
shown  to  have  been  used  by  an  owner  of  land  over  the  land  of  an- 
other for  the  requisite  period,  without  interruption  with  all  the  inci- 
dents of  ownership,  the  fact  of  such  use  is  accepted  as  conclusive 
prool  of  the  right.    The  extent  of  the  right  is  determined  by  the  nature 


124  ORIGINAL  TITLE3  (Part  1 


^ 


and  extent  of  the  use.  It  is  said :  "Every  species  of  prescription  by 
Iwhich  property  is  acquired  or  lost  is  founded  on  the  presumption 
that  he  who  has  had  a  quiet  and  uninterrupted  possession  of  anything; 

or  a  long  period  of  years  is  supposed  to  have  a  just  right  thereto, 
ithout  which  he  could  not  have  been  suffered  to  continue  so  long-  in 

he  enjoyment  of  it."     Brown,  Inst.  418. 

This  is  the  principle  of  the  civil  law  from  which  title  by  prescription 
is  derived.  It  mUst  not  be  confounded  with  usucaption,  which  simply, 
by  the  lapse  of  a  short  time,  cured  defects  in  titles  otherwise  good. 
Prescription  WAS_  not  regarded  as  a,  source  of  title,  buj  as  a  rneans^ 
of  defense  against  the  assertion  of  an  originally  superior  title^ — one 
that  would  have  prevailed  but  for  the  consideration  given  to  long- 
time possession.  It  would  seem  that  this  was  made  available  by  the 
magistrate  so  framing  the  formula  as  to  confine  the  inquiry  of  the 
judge  to  the  simple  question  of  long-time  possession,  and  this  was  done 
by  writing  the  limitation  before  the  intentio.  Hence  the  significance 
of  the  term  "prescription/'  which  from  its  etymology  means  a  writ-^ 
jn^before.  The  prescription  was  inserted  for  the  very  purpose  of 
exclii^ng  any  other  inquiry  as  to  the  rights  of  the  party  claiming 
thereunder  than  such  as  arose  from  long  possession  of  the  land  in  the 
character  of  owner.  Sander,  Just.  Introd.  §  104;  Hunter,  Roman 
Law,  288;   Postes,  Gaius,  581. 

But  it  is  not  material  on  which  ground  we  regard  that  a  right  to 
an  easement  by  prescription  rests, — whether  on  that  of  a  grant  pre- 
sumed from  lapse  of  time,  or  from  the  justice  and  policy  of  protect- 
ing one  who  has  long  used  and  enjoyed  a  right  in  the  character  oi^ 
owner, — the  practical  result  is  the  same.  '  The  party  so  using  and  en- 
joying the  easement  is  adjudged  as  possessing  the  right  in  connection 
with  his  land  as  an  incident  thereto.     The  substance,  then,  of  a  title] 
by  prescription,  whether  it  relate  to  the  land  or  an  easement  in  it./ 
is  the  use  and  enjoyment  of  the  land,  or.  the  easement,  for  the  requisite! 
period  as  an  owner.     No  inquiry  beyond  this  is  required.     The  estabj 
lishment  of  the  claim,  however,  necessarily  requires  proof  Jthat  the  us4 
was  adverse  to  the  real  owner,  and  lincler  a  claim  of  right.    Withoiii 
such  proof  one  could  not  be  said  to  possess  or  use  as  an  owner.     Nor 
would  the  claim  be  consistent  with  a  case  where  the  possession  is 
taken  and  held  under  the  license  or  permission  of  the  real  owner.  '  But\ 
in  the  case  of  an  easement  it  is  not  required  that  the  use  should  be  i 
exclusive  of  the  owner  of  the  servient  tenement.     The  latter  may  use 
a  way  in  connection  with  the  owner  of  the  dominant  tenement,  as  the  , 
two  uses  are  consistent;   and  the  owner  of  the  servient  tenement  may 
maintain  gates  thereon  where  such  was  his  custom  during  the  period 
of  prescription.     The  use  made  of  the  way  and  the  mode  of  its  en-j 
joyment  during  this  period  determines  the  extent  of   the   right  ac-i 
quired  and  its  limitations.     Washb.   Easem.    135.     These  views  are'' 
fully  sustained  by  the  authorities  cited  by  counsel  for  the  defendanlj 
in  error. 


Ch.  2)  PEESCRIPTION  125- 

In  this  case  the  finding  shows  that  the  use  made  of  the  way  was 
adverse  to  theowner  oi  the  land.  It  prevented  him  from  cultivat- 
ing it  as  he  might  otherwise  have  done,  or  from  making  any  use  of  it 
inconsistent  with  the  right  of  way  as  used.  It  also  appears  that  it 
was  under  a  claim  of  right,  as  it  was  used  without  "let  or  hindrance" 
and  "without  asking  leave."  |  These  circumstances  are  sufficient  to 
show  that  it  was  under  a  claim  of  right.  It  is  not  necessary  that  it 
should  have  been  made  to  appear  that  the  party  using  the  way  verbally 
asserted  the  right  to  do  so  when  using  it.  This  may  appear  from 
conduct  as  well  as  words ;  using  a  way  without  asking  leave  imports^  ' 
a  claim  of  right  tO-do-SQ..  It  may  be  stated  as  a  general  rule ,  that  ' 
where  a  person  uses  a  way  in  the  enjoyment  of  his  own  land  through 
the  land  of  another,  without  let  or  hindrance,  for  the  period  of  21 
years,  in  the  absence  of  anything  to  the  contrary,  he  thereby  Acquires 
a  right  by  prescription  to  continue  the  use  as  an  incident  to  his  own 
land,  and  which  will  pa55-by_a  conveyance jar-iiescent^  of,  it.  The  fact  I 
of  the  use  is  open  to  explanation.  It  may  be  shown  to  have  been  per- 
missive. But  in  such  case  the  burden  is  upon  the  owner  of  the  land 
to  show  that  the  use  was  a  permissive  one.  Garrett  v.  Jackson,  20  Pa. 
331 ;  O'Daniel  v.  O'Daniel,  88  Ky.  185,  10  S.  W.  638.  If  the  rule  were 
otherwise,  the  burden  of  proof  would  be  placed  on  the  party  holding 
the  negative,  which  is  seldom,  if  ever,  done  in  civil  suits ;  for  it  is 
easier  to  prove  an  affirmative  than  a  negative.  Such  evidence  may 
have  been  offered,  but  the  court  evidently  found,  in  this  regard, 
against  the  defendant,  in  finding  that  it  was  without  "let." 

The  evidence  is  not  incorporated  in  the  record,  and  the  finding  must 
govern  the  disposition  of  tlie  case.    Judgment  affirmed.^** 

BARBER  V.  BAILEY. 

(Supreme  Court  of  Vermont,  1912.     86  Vt.  219,  84  Atl.  608,  44  L.  R.  A. 

[N.  S.]  98.) 

Powers,  J.^^  The  orator  owns  a  piece  of  land  on  the  northerly  side 
of  Pine  Street,  in  the  village  of  Newbury,  known  as  the  "Spring  House 
Pasture."  The  defendant  lives  in  a  house  which  stands  just  north  of 
this  pasture,  and  has  lived  there  since  sometime  in  1846.  During  all 
this  time,  he,  and  tlie  members  of  his  family,  in  going  to  and  from 
Pine  Street  and  the  postoffice,  have  taken  a  "short  cut"  through  the 
£asture.^  No  one  has  ever  objected  to  this  until  on  December  2,  1908, 
'the  orator  asked  the  defendant  to  take  and  carry  away  a  certain  timber 
which  he,  the  defendant,  had  used  as  a  bridge  over  a  small  brook  in 

10  See,  also,  Fleming  v.  Howard.  jnoCal.  28,  87  Pac.  90S  (1906);  Mitchell  v. 
Bain,  142  Ind.  604,  42  N.  E.  2:^0  (l.^^oTT^nittir-Tr  Pennington,  122  Ky,  355,  91 
S.  W.  730,  8  L.  R.  A.  (N.  S.)  149  (1906). 

11  A  portion  of  the  opinion  is  omitted. 


A 


126  ORIGINAL  TITLES  (Part  1 

the  pasture.  This  the  defendant  refused  to  do,  and  the  orator  cut 
the  timber  in  two,  and  the  water  floated  it  away.  The  defendant  sued 
the  orator  to  recover  damages  for  the  loss  of  the  timber,  and  with  this 
action  pending,  the  orator  brought  this  bill  in  chancery  to  enjoin  the 
action  at  law,  to  restrain  the  defendant  from  crossing  the  pasture, 
and  for  an  accounting.  A  trial  was  had  before  the  chancellor,  who 
found  and  filed  the  facts,  and  a  decree,  was  tliereupon  rendered  for 
the  orator.  From  that  decree  the  defendant  appeals.  The  only  ques- 
tion litigated  below  was  as  to  the  right  of  the  defendant  to  cross  the 
pasture,  a  prescriptive  right  so  to  do  being  the  defendant's  only 
claim.     *     *     * 

This  brings  us  to  a  consideration  of  the  main  question  in  the  case : 
Has  the  defendant  acquired  a  prescriptive  right  to  cross  the  orator's 
pasture?  The  finding  is  that  for  upwards  of  sixty  years  the  defend- 
ant and  his  family  have  passed  through  the  pasture  to  and  from  Pine 
Street  "openly,  notoriously  and  continuously,  without  interruption." 
_,^The  right  to  an  easement  in  another's  land  acquired  by  long  use  and 
enjoyment  is  analogous  to  the  right  acquired  by  adverse  possession; 
and  the  rules  of  law  applicable  to  the  two  cases  are  in  harmony. 
Mitchell  V.  Walker,  2  Aikens,  266,  16  Am.  Dec.  710;  Tracy  v.  Ather- 
ton,  36  Vt.  503.  One  of  the  essentials,  to  the  acquisition  of  §iich  a 
right  is  that  the  use  shall  be  adverse, — that  is  to  say,  it  must  be  under 
a  claim  of  right  on  the  ^art  of  the  user.  Mitchell  v.  Walker,  supra; 
Lathrop  v.  Levam,  83  Vt.  \,1\  Atl.'33i ;'  Goodall  v.  Drew,  85  Vt.  408, 
82  Atl.  680.  So  the  finding  before  us  lacks  one  of  the  elements  of  a 
prescription,  for,  as  we  have  seen,  it  does  not  specify  whether  the  de- 
fendant's use  of  tlie  pasture  has  been  adverse  or  permissive.  Prima 
facie,  the  orator  being  the  owner  of  the  pasture,  the  defendant's  acts 
were  mere  trespasses^  The  burden  of  proof  was  on  the  defendant  to 
establish  his  prescriptive  right,  if  he  had  one.  Plimpton  v.  Converse, 
42  Vt.  712.  And  this  was  so,  though  the  orator  may  have  alleged 
in  liis  bill  that  the  defendant  had  no  such  riglit.  For,  though  he  al- 
leges more,  the  orator  need  only  prove  that  the  defendant  committed 
acts  which,  in  the  absence  of  excuse  or  justification,  amounted  to  a 
trespass.  Bosworth  v.  Bancroft,  74  Vt.  451,  52  Atl.  1050.  Our  at- 
tention is  called  to  the  statement  in  the  findings  to  the  eflfect  that  the 
defendant  never  asserted  that  he  crossed  the  pasture  under  a  claim 
of  right,  but  this  obviously  refers  to  an  express  assertion,  and  leaves 
untouched  the  effect  of  the  defendant's  conduct.  I  It  was  not  necessary 
for  the  defendant  to  make  an  express  declaratioir  of  his  claim ;  it  was 
enough  if  his  use  of  the  way  was  of  such  a  character  as  to  indicate  to 
the  owners  of  the  pasture  that  it  was  under  a  claim  of  right.  Wilder 
V.  Wheeldon,  56  Vt.  344;  Jangraw  v.  Mee,  !':>  Vt.  211,  54  Atl.  189,  98 
Am.  St.  Rep.  816. 

In  establishing  the  adverse  character  of  his  use  of  the  way,  the  de- 
fendant is  aided  by  a  presumption,  which  arises  from  the  fact  that  the 
ora'tor   and   the   previous    owners   knew    all    about   his   crossing   tlie 


Ch.  2)  PRESCRIPTION  127 

pasture  and  made  no  effort  to  prevent  it.  This  made  it  necessary  for 
the  orator  to  come  forward  with  evidence  that  the  defendant's  acts 
were,  in  fact,  permissive.  The  rule  in  such  cases  was  stated  by  Qiief 
Judge  Redfield  in  Arbuckle  v.  Ward,  29  Vt.  43,  in  these  words:  f'The 
mere  use,  if  so  open  and  notorious  as  obviously  to  attract  the  notice 
of  the  owner  of  the  soil,  or  if  expressly  shown  to  have  come  to  his 
knowledge,  will  prima  facie  establish  the  right,  and  it  will  be  in- 
cumbent upon  the  owner  to  show  in  some  mode,  that  it  was  not  used 
under  a  claim  of  right  to  the  water,  or  that  he  did  not  so  understand 
it,  and  was  not  bound  to  so  regard  it  from  the  nature  and  extent  of 
the  use."  The  same  thing  was  held  in  Perrin  v.  Garfield,  2>7  Vt.  304; 
Dodge  V.  Stacy,  39  Vt.  558;  and  in  Wilder  v.  Wheeldon,  56  Vt.  344.. 
But  notwithstanding  this  presumption,  the  character  of  the  use  re- 
mains a  question  of  fact,  unless  the  proof  and  inferences  are  all  one 
way,  Plimpton  v.  Converse,  42  Vt.  712,  and  the  burden  of  proof  re- 
mains on  the  defendant.  And  here  the  proof  and  inferences  were  not 
all  one  way,  for  there  were  facts  and  circumstances  shown  from  which 
we  think  it  could  reasonably  be  inferred  that  the  defendant's  use  of 
the  pasture  was  permissive.  The  character  and  situation  of  the  land, 
the  use  made  of  it  by  the  other  neighbors,  and  other  circumstances,) 
indicate,  more  or  less  strongly,  that  the  defendantl$_use  of  the_pas- 
ture  was  ex  gratia  and  not  hostile.  This  being  so,  there  is  nothing 
for  this  Court  to  do  but  assume,  in  aid  of  the  decree,  that  the  court  of 
chancery  inferred  this  fact  from  those  found,  since  without  it  the  de- 
cree could  not  stand.  In  re  Braley's  Estate,  85  Vt.  351,  82  Atl.  5; 
Whitehead  v.  Whitehead.  84  Vt.  321.  79  Atl.  516;  Perkins  &  Co.  v. 
Perley,  82  Vt.  524,  74  Atl.  231;  Van  Dyke  v.  Cole,  81  Vt.  379,  70 
Atl.  593,  1103;  Davenport  v.  Crowell,  79  Vt.  419,  65  Atl.  557;  Sowles 
V.  St.  Albans,  71  Vt.  418.  45  Atl.  1050;  Russell  v.  Davis,  69  Vt.  275, 
37  Atl.  746;  Perrin  v.  Garfield,  37  Vt.  304.  This  is  just  what  the 
Court  did  in  the  case  last  cited,  except  that  it  was  there  necessary  in 
support  of  the  judgment  to  assume  that  the  court  below  inferred  that 
the  use  was  hostile  instead  of  permissive. 

We  reahze  that  it  is  a  serious  matter  to  interfere  with  privileges  en- 
joyed  for  more  than  sixty  years,  but  it  must  not  be  forgotten  that  this 
^ourt  sits  in  error  only,  and  must  deal  with  a  record  according  to  the 
establislie3_]riiles  of  law,  and  without  regard  to  its  own  notion^  of  the 
merits^  of  the_ controversy^.     *     *     * 

Decree  affirmed  and  cause  remanded.^' 

12  See,  also,  Bradley's  Fi.sh  Co.  v,  Dudley.  37  Conn.  130  (1870);  Shea  v. 
Gavitt.  S9  Conn.  .^.jO.  r>4>  Atl.  P.CO,  L.  R.  A.  lOlfiA,  GS9  (11)1.5);  Chicago,  B. 
&  Q.  R.  Co.  V.  Ives.  202  111.  00.  GO  N.  E.  940  (lOD.S) ;  Bniner  (Jranitoid  Co.  v. 
Glencoe  Lime  &  Cement  Co.,  IGO  Mo.  App.  2'.).',,  I;j2  S.  W.  GOl  (1912):  Moll  v. 
Hagerbaumer,  97  Neb.  S09,  151  N.  W.  300  (1915);  Id.,  98  Neb.  555,  153  N.  W. 
560  (1915). 

Land  entirely  surrounded  by  other  lands  of  the  grantor  was  conveyed  to  A., 
who  for  more  than  twenty  years  made  open  use  of  a  convenient  way  from 
the  highway  to  his  land  over  the  land  of  the  grantor.     A.  then  buys  a  tract 


128  ORIGINAL  TITLES  (Part  1 


LECHMAN  V.  MILLS. 

(Supreme  Court  of  Washington,  1907.    46  Wash.  624,  91  Pac.  11,  13  L.  R.  A. 
[N.  S.]  990,  13  Ann.  Cas.  923.) 

HadlEy,  C.  J.  This  action  was  brought  to  enjoin  tlie  defendants 
from  keeping*  and  maintaining  a  canal  on  and  across  certain  lands 
which  the  plaintiff  claims  to  own,  and  also  from  overflowing  with  wa- 
ter any  portion  of  said  lands  by  means  of  said  canal  together  with 
dams  or  dikes.  Following  largely  the  order  of  statement  found  in  the 
brief  of  respondents,  we  believe  the  following  is  a  fair  statement  of 
thejacts  in  the  case:  In  the  year  1879  one  Briggs  was  the  occupant, 
but  not  the  owner,  of  the  land  over  which  thii"  controversy  exists,  and 
which  land  the  plaintiff  now  claims  to  own.  At  that  time  it  was  be- 
lieved the  land  would  be  included  within  the  limits  of  the  grant  to 
the  Northern  Pacific  Railway  Company  when  those  limits  should 
be  determined  by  the  adoption  of  the  line  of  definite  location  of  the 
road,  such  adoption  not  then  having  been  made.  Briggs  expected  to 
purchase  the  land  from  the  railroad  company  as  soon  as  the  latter 
acquired  the  title  and  was  in  position  to  make  a  sale  and  conveyance. 
But  the  land  was  then  a  part  of  the  public  domain,  and  Briggs  was  a 
mere  occupant.  While  such  was  the  situation,  Mr.  Mills,  one  of  the 
defendants  in  this  action,  constructed  a  water  ditch  and  pond  on  part 
of  said  land  to  serve  the  purposes  of  power  for  the  operation  of  a 
sawmill.  The  ditch  led  from  the  Yakima  river  down  to  a  depression 
upon  the  land  now  claimed  by  the  plaintiff,  and  by  means  of  dikes 
and  dams,  together  with  the  natural  topography  of  the  ground,  the 
water  was  impounded  in  a  lake  or  pond,  a  part  of  the  land  so  flood- 
ed being  a  part  of  the  land  now  claimed  by  the  plaintiff.  The  lower 
end  of  the  pond  was  upon  land  owned  by  Mills,  and  the  water  which 
flowed  into  the  pond  was  released  through  an  outlet  upon  the  land 
of  Mills.  Mills  also  constructed  a  sawmill,  and  the  water  so  im- 
pounded developed  the  power  for  the  operation  of  the  mill. 

Prior  to  the  construction  of  the  ditch,  reservoir,  and  mill,  said  Mills 

entered  intp^an  agreement  with  Briggs,  the  real  nature  of  which  is 

in  issue.  ,  'The  plaintiff  contends  that  it  was  a  mere  permission  or 

revocable  license  to  Mills  to  construct  and  maintain  the  ditch  and  res- 

i  ervoir.    The  defendants  contend,  and  the  trial  court  found,  that  it  was 

la  verbal  grant  from  Briggs  to  Mills  of  the  right  to  construct  and 

\maintain  said  works  upon  the  land.     It  is  not  disputed  that  Briggs  at 

|that  time,  and  as  a  part  of  the  agreement,  undertook  and  promised 

to  execute  a  deed  as  soon  as  he  should  obtain  title  from  the  railroad 

of  land  over  which  he  may  reach  another  highway.  Does  he  still  have  a 
right  to  use  the  first  way?  Suppose  that  for  more  than  twenty  years  after 
.  his  purchase  of  the  second  tract  he  continued  to  use  the  old  way  as  before. 
Is  the  situation  any  different?  See  Ann  Arbor  Fruit  &  Vinegar  Co.  v.  Ann 
Arbor  R.  Co.,  136  Mich.  599,  99  N.  W.  869,  66  L.  R.  A.  431  (1904). 


Ch.  2)  PRESCRIPTION  129 

company.  But  the  plaintiff  claims  that  Briggs,  in  making  the  agree- 
ment, did  not  intend  to  give  a  deed  without  first  being  paid  a  fur- 
ther consideration  in  money,  no  amount  being  stated  but  the  amount 
to  be  subsequently  fixed  by  further  agreement.  The  defendants  con- 
tend that  this  verbal  agreement  contemplated,  so  far  as  a  verbal  agree- 
ment could,  an  absolute  and  perpetual  grant.  Mills  has  continued  to 
operate  his  sawmill  by  means  of  the  water  so  stored  from  the  time  of 
said  construction  up  to  the  present  time.  In  1882  he  granted  to  Hutch- 
inson and  Dreisner  a  one-half  interest  in  the  said  power  for  the  pur- 
pose of  operating  a  flour  mill,  which  was  then  by  them  erected.  The 
said  flour  mill,  together  with  the  said  conveyed  interest  in  the  water 
power,  has  by  mesne  conveyances  passed  to  the  defendants  Kendall 
and  Mack.  The  Northern  Pacific  Railway  Company  deeded  the  land 
to  Briggs  in  J88?7  and  he  continued  to  own  and  occupy  all  of  the 
land  except  tTiat  occupied  by  the  canal  and  reservoir,  until  October, 
1898.  During  all  of  said  time  the  defendants  and  their  predecessors 
in  interest  continued  to  maintain  the  canal  and  reser\oir,  and  to  im- 
pound the  water  therein,  and  to  utilize  the  power  for  the  operation  of 
said  mill  plants.  In  October,  1898,  Briggs  executed  to  the  Sullivan 
Savings  Institution  an  instrument  in  the  form  of  a  deed  purportmg 
to  convey  to  said  grantee  the  title  to  said  land.  The  plaintiff  derives 
his.  title  through  said  Sullivan  Savings  Institutjon.  This  action  was 
brought  In  January,  1906,  to  enjoin  the  defendants7as  aforesaid,  from 
further  maintaining  the  ditch  and  reservoir.  The  cause  was  tried 
before  the  court  without  a  jury,  and  judgment  was  rendered  for  the 
defendants,  to  the  effect  that  they  have  a  perpetual  easement  against 
the  plaintiff  and  all  persons  claiming  or  to  claim  through  or  under 
him?   The  plainirflThas  appealed.  ^ 

^Tinding  Na  2,  as  entered  by  the  court,  is  as  follows:  "That  just 
prior  to  the  construction  of  said  works  the  said  defendant  Mills  en- 
tered into  an  agreement  with  one  Wilkin  Briggs,  who  was  then  the 
occupant  of  the  land  hereinabove  described  which  land  is  claimed 
by  the  plaintiff,  wherein  and  whereby  the  said  Mills  undertook  and 
agreed  to  construct  said  canal,  dams,  reservoir  and  sawmill,  and  the 
said  Wilkin  Briggs,  in  consideration  of  said  undertaking  and  agree- 
ment of  said  J.  L.  Mills,  gave  and  granted  to  said  J.  L.  Mills  verbally 
a  perpetual  right  of  way  over  and  upon  said  land  for  said  canal, 
ditch  and  reservoir,  together  with  the  right  to  construct  and  forever 
maintain  said  canal,  ditch,  reservoir  and  dams  upon  said  land  and  to 
convey  said  water  through  said  ditch  or  canal  into  said  reservoir  and 
to  impound  said  water  in  said  reservoir  and  overflow  the  and 
occupied  by  said  reservoir  in  order  to  make  the  required  head  of 
water  for  the  operation  of  the  mills  that  were  to  be  run  by  said 
power.  That  at  that  time  the  said  Wilkin  Briggs  had  no  title 
to  the  land  now  claimed  by  the  plaintiff  but  the  same  was  then 
a  part  of  the  public  domain  of  the  United  States,  but  it  was  then  sup- 
Aig.Pbop. — ^9 


130  ORIGINAL  TITLES  (Part  1 

posed  that  the  same  would  be  included  within  or  covered  by  the  land 
grant  to  the  Northern  Pacific  Railroad  Company  as  soon  as  the  route 
of  said  company's  railroad  should  be  definitely  located  through  said 
county,  and  the  said  Wilkin  Briggs  then  expected  to  eventually  pur- 
chase said  land  from  said  company.  And  at  the  time  of  said  verbal 
agreement  between  the  said  Wilkin  Briggs  and  the  said  J.  L.  Mills  the 
said  Briggs  verbally  agreed  to  execute  and  deliver  to  the  said  J.  L. 
Mills  a  deed  evidencing  said  grant  of  said  right  of  way  and  easement 
upon  the  demand  of  said  J,  L.  Mills  as  soon  as  the  said  Briggs  him- 
self received  a  deed  to  said  land ;  and  the  said  Briggs  then  and  there 
waived  any  and  all  other  or  further  compensation  on  account  of  the 
construction  and  maintenance  of  said  works  and  for  the  overflowing 
of  said  land." 

It  was  further  found  that  Mills  thereafter  constructed  said  works 
and  sawmill  and  entered  into  the  enjoyment  of  the  easement  and  of  the 
rights  thus  verbally  granted  to  him,  openly,  notoriously,  and  adversely 
as  against  Briggs  and  all  other  persons,  under  claim  of  right,  and 
with  the  full  knowledge  and  acquiescence  of  Briggs ;  that  all  of  said 
construction  was  made  in  reliance  upon,  and  on  the  faith  of,  the  ease- 
ment so  granted  and  of  the  right  to  construct  and  perpetually  main- 
tain said  works  and  conduct  water  through  said  canal  and  impound 
the  same,  at  an  expense  of  $10,000,  all  of  which  was  known  to  Briggs 
who,  during  all  the  time  of  his  occupancy  acquiesced  in  the  claim  of 
Mills  and  never  disputed  or  denied  it;  that  the  grantees  of  Mills, 
who  held  the  flouring-mill  power,  in  like  manner  relied  upon  the  right 
to  perpetually  use  said  water  and  power  and  perpetually  maintain  the 
reservoir,  and  by  reason  thereof  they  constructed  their  flour  mill  at 
an  expense  of  $8,000,  all  of  which  was  known  to  Briggs  during  the 
time  of  his  occupancy  and  claim  of  title  to  any  of  said  land,  and  he 
never  denied  or  disputed  said  rights,  but  always  acquiesced  therein. 
Errors  are  assigned  upon  the  findings,  but  we  think  they  are  sustained 
by  the  evidence. 

The  findings  establish  that  the  agreement  made  by  Briggs  with  Mills 
was  not  a  mere  revocable  license  or  permission  to  occupy,  but  that  it 
was  intended  to  operate  as  a  grant  to  be  confirmed  by  deed  when  Briggs 
acquired  the  title  so  that  he  could  convey  it.  We  believe  it  is  unnec- 
essary to  discuss  the  testimony  in  detail,  since  we  are  satisfied  that  it 
establishes _the  intention  to  make  an  absolute  grant,  the. consideration  of 
which  was  the  construction  and  operation  of  the  mill  at  that  place. 
The  use  of  the  premises  was  thus  initiated,  and  it  continued  uninter- 
ruptedly for  more  than  twenty-five  years,  until  this  suit  was  brought. 
Such  use  must  now  be  presumed  to  have  been  adverse,  unless  it  is 
explained  to  have  been  otherwise. 

"Where  the  use  of  an  easement  has  continued  for  the  prescriptive 

-^  period  unexplained,  it  will  be  presumed  to  have  been  adverse,  unless 

it  is  of  such  a  character,  or  the  circumstances  attending  it  are  such. 


Ch.  2)  PRESCRIPTION  131 

as  to  show  that  it  was  a  mere  privilege  enjoyed  by  leave  of  the  land- 
owner." 22  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  p.  1202.  Moreover,  the 
use  was  not  deprived  of  its  adverse  character  or  rendered  merely  per- 
missive for  the  purposes  of  the  statute  of  limitations  by  a  showing 
that  it  was  preceded  by  an  oral  agreement  amounting  in  terms  to  a 
grant,  but  void  under  the  statute  of  limitations.  "It  is  generally  agreed 
that  use  of  an  easement  under  claim  of  right  by  virtue  of  a  parol 
grant,  may  be  adverse  so  as  to  give  a  title  by  prescription,  although  the 
parol  grant  itself  is  void  under  the  statute  of  frauds."  22  Am.  &  Eng. 
Ency.  Law  (2d  Ed.)  p.  1198,  and  cases  cited. 

The  following  from  the  opinion  in  Covcnton  v.  Seufert,  23  Or.  548, 
32  Pac.  508,  may  also  be  set  forth  as  pertinent  to  this  subject:  "An 
easement  cannot  be  granted  by  parol;  yet,  if  Mr.  Simpson  purchased 
from  Mr.  Jackson  the  right  to  use  the  ditch,  and  used  the  same  for 
ten  years,  and  such  use  was  acquiesced  in  by  Mr.  Jackson  and  his 
grantees,  it  would  be  such  an  exercise  of  the  easement,  under  a  claim 
of  right,  as  to  give  a  prescriptive  right  to  the  same.  It  is  no  objection 
to_granting  an  easement  by  prescription  that  the  same  was  originally 
granted  or  bargained  for  by  parol.  That  the  use  began  by  permis- 
sion does  not  affect  the  prescriptive  right,  if  it  has  been  used  and 
exercised  for  the  requisite  period  under  a  claim  of  right  on  the  part  of 
Mr.  Simpson  and  his  heirs,  and  their  grantees.  If  the  use  of  a  way  is 
under  a  parol  consent  given  by  the  owner  of  the  servient  tenement  to 
use  it  as  if  it  were  legally  conveyed,  it  is  a  use  as  of  right :  Gould,  Wa- 
ters, §  338;  Washburn,  Easem.  (2d  Ed.)  127.  The  plaintiffs  have  used 
the  ditch  as  if  it  had  been  legally  conveyed  to  them,  that  is,  they  have 
exercised  such  acts  of  ownership  over  it  as  a  man  would  over  his  own 
property, — and  the  court  must  presume,  in  the  absence  of  any  evidence 
to  the  contrary,  that  the  settlement  was  a  parol  consent  or  transfer 
by  Mr.  Jackson  to  Mr.  Simpson  of  the  right  to  use  the  ditch,  and 
hence  it  was  a  use  as  of  right." 

The  facts  in  this  case  clearly  show  a  continuous  adverse  use  by  re- 
spondents ami  their  grantors  under  claim  of  right  for  more  than  a 
quarter  of  a  century.  This  estajjlishes  their  title  by  prescription^  and 
we  find  it  unnecessary  to  discuss  other  reasons  suggested  in  support 
of  their  title.     *     *     *  is 

The  judgment  is  affirmed. 

13  The  remainder  of  the  opinion  relating  to  another  point  Is  omitted. 


132  ORIGINAL  TITLTES  (Part  1 

LEHIGH  VALLEY  R.  CO.  v.  McFARLAN. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  ISSl.     43  N.  J.  Law,  605.) 

Depue:,  J.^*  The  defendant  is  tlie  lessee  of  the  Morri!>  Canal  and 
Banking  Company.  In  18/1,  the  property,  works  and  franchises  of 
the  latter  compaiiy  were  granted  to  the  defendant  by  a  pprpp^iif|]  jpn^p, 
under  the  authority  of  an  act  of  the  legislature.  Pamph.  L.  1871, 
p.  444. 

The  lessor  was  incorporated  in  1824,  for  the  purpose  of  construct- 
ing a  canal  to  unite  the  river  Delaware,  near  Easton,  with  the  tide 
waters  of  the  Passaic.  Pamph.  L.  1824,  p,  158.  The  canal  was  con- 
structed from  the  Delaware  to  the  Passaic  about  1830.  In  1845  it  was 
enlarged  throughout  its  entire  length  to  provide  for  navigation  with 
boats  of  greater  capacity.  In  1857  the  company  renewed  jjie  timbers 
in  its  dam  across  the  Rockaway  river,  and  placed  new  flash  boards 
upon  it.  In  1875  the  flash  boards  were  replaced  by  timbers  firmly 
spiked  on  the  top  of  the  dam,  and  made  part  of  its  permanent  struc- 
ture. 

The  plaiaiif£.is  the  owner  of  a  mill  situate  on  the  Rockawav  river, 
above  tJTe  site  of  the  dam.  Pie  complains  of  an  injui*y  to  his  mill  by 
back  water  cast  back  upon  it  by  means  of  the  dam.  The  damages 
claimed  are  such  as  accrued  between  the  30th  of  December,  1876,  and 
the  22d  of  September,  1877.  As  his  declaration  was  originally  framed, 
the  theory  of  his  action  was  that  the  dam  at  its  increased  height  was 
ari  unlawful  '^i-m^tnrp  At  the  trial  the  declaration  was  so  amended 
as  to  present  a  claim  for  compensation  for  the  damages  sustained  by  the 
plaintiff  between  the  days  named,  conceding  that  the  canal  company 
by  its  charter  had  power  to  take  and  appropriate  to  its  use,  lands  and 
water,  without  compensation  first  made,  and  that  therefore  the  dam 
was  not,  in  itself,  an  unlawful  structure.     *     *     * 

The  dp/^TTg&P^^^so  contended  at  the  trial  that  tlie  righ^to  maintain 
its  dam  at  its  present  height  had  been  acquired  bv  adverse  emovment. 
1 1  the  defendant,  or  tlie  canal  company,  under  whom  it  claims,  has  ac- 
quired the  right  in  dispute  by  pr^^cJ;^^J^io^^Jhe  subject  already  discussed 
becomes  of  no  importance  in  this  litigation.  It  will  be  necessary,  there- 
fore, to  examine  the  instructions  of  the  judge  on  this  head. 
('  The  instruction -was,  in  substance  and  effect,  that  mere  verbal  pro- 
tests and  denial  of  the  right,  without  any  interruption  or  ohstmrtion 
in  fact,  of  the  enjoyment  of  tlie  right,  would  prevent  the  acquisition 
of~an  easement  by  adverse  user.  This  instruction  follows  the  opinion 
oFthe  Vice-Chancellor,  in  Lehigh  Valley  R.  R.  Co.  v.  McFarlan,  30  N. 
J.  Eq.  180.     *     *     * 

14  That  portion  of  the  opinion  relating  to  the  plaintiff's  claim  to  compen- 
sation, in  which  the  court  concluded  the  plaintiff  was  so  entitl«»d,  is  omitted. 
Other  parts  of  the  opinion  also  are  omitted. 


Ch.2) 


PRESCRIPTION 


133 


The  owner  of  the  servient  tenement  cannot  overcome  tlie  presump- 
tion of  right  ansingy  from  an  uninterrupted  user  nf  twenty  years,  by 
proof  that  no  grant  was  in  fact,  made.  He  may  rebut  the  presumption 
by  contradicting  or  explaining  the  facts  upon  which  it  rests ;  but  he 
cannot  overcome  it  by  proof  in  denial  of  a  grant.  He  may  show  that 
the  right  claimed  is  one  that  could  not  be  granted  away,  or  that  the 
owner  of  the  servient  tenement  was  legally  inrapahle  of  making,  nr  the 
owner  of  the  dominant  tenement  incapable  of  receiving,  such  a  grant. 
Rochdale  Canal  v.  Radcliffe,  18  Q.  B.  287 ;  Ellwell  v.  Birmingham  Ca- 
nal, 3  H.  of  L.  812;  Staffordshire  Canal  v.  Birmingham  Canal,  L.  R.  1 
H.  of  L.  254;  Thorpe  v.  Corwin,  Spenc.  312.  He  may  explain  the  user 
or  enjoyment  by  showing  that  it  was  under  permission  asked  and  grant- 
ed ;  or  that  it  was  secret  and  without  means  of  knowledge  on  his  part ; 
or  that  the  user  was  such  as  to  be  neither  physically  capable  of  pre- 
vention nor  actionable.  Chasemore  v.  Richards,  7  H.  of  L.  Cas.  349 ; 
Webb  V.  Bird,  13  C.  B.  (N.  S.)  841 ;  s.  c,  10  C.  B.  (N.  S.)  268;  Sturges 
V.  Bridgman,  11  Ch,  Div.  852.  But  if  there  be  neither  legal  incompe- 
tency nor  physical  incapacity^  and  the  user  be  open  and  notorious,  and 
be  such  as  to  be  actionable  or  capable  of  prevention  by  the  servient 
owner,  he  can  only  defeat  the  .affiui-^ition  of  the  rif;ht  on  theground 

of  the  enjoyment  was 


that  the  ust^  w-as  r;pntcntious,  or  the  continuity 
interruj3ted_diiring  th^period  qt  prescription. 

In  defining  title  by  prescription,  Sir  Edward  Coke  says,  both  to  cus- 
toms and  prescriptions,  these  two  things  are  incidents  inseparable,  viz., 
possession  or  usage  and  time.  Possession  must  have  these  qualities: 
It  must  be  long,  continual  and  peaceable ;  long,  that  is,  during  the  time 
defined  by  law ;  continuous,  that  is,  that  it  may  not  have  been  lawfully 
interrupted;  peaceable,  because  if  it  be  contentious  and  the  opposition 
be  on  good  grounds,  the  party  will  be  in  the  same  condition  as  at  the 
beginning  of  his  enjoyment.  Co.  Lit.  113  b.  By  a  long  course  of  de- 
cision, the  word  "interrupted,"  when  applied  to  acts  done  by  the  ser- 
vient owner,  has  received  a  fixed  meaning  as  indicating  an  obstruction 
to  the  use  of  the  easement,  some  act  of  interference  with  its  enjoyment, 
which,  if  unjustifiable,  would  be  an  actionable  wrong.  This  meaning 
has  been  given  to  tlie  word  as  used  in  the  statute  2  and  3  William  IV, 
(Parke,  B.,  in  Olney  v.  Gardner,  4  M.  &  W.  495,)  and  is  its  usual  signifi- 
cation. 

Sir  Edward  Coke  gives  no  illustration  of  what  was  meant  by  conten- 
tious, except  "opposition  on  good  grounds,"  and  by  a  quotation  from 
Bracton,  who  wrote  in  a  primitive  era  of  English  law,  before  the  doc- 
trine of  prescription,  as  applied  to  incorporeal  hereditaments,  had  been 
subjected  to  the  formative  processes  of  judicial  expositions  from  which 
the  present  state  of  the  law  is  derived.  The  expression  "opposition  on 
good  grounds"  implies  an  act  which  would  afford  an  opportunity  to  sub- 
niit  its  validity  to  the  test  of  judicial  decision,  and  is  more  consistent 
with  the  idea  of  an  interference  with  the  enjoyment  of  the  right,  such 
as  would  give  the  owner  ability  to  go  into  court  and  establish  his  right. 


yh 


134  ORIGINAL   TITLES  (Part  1 

than  with  the  supposition  that  prescriptive  rights  should  he  forever  kept 
in  abeyance  by  acts  which  gave  persons  claiming  them,  no  power  by 
suit  at  law  to  establish  the  right.  In  the  passage  quoted  by  Coke  from 
Bracton,  this  early  writer  says :  "I  use  the  term  peaceable,  because  if 
it  be  contentious,  it  will  be  the  same  as  before,  if  the  contention  has 
been  just;  as  if  the  true  lord  forthwith,  when  the  intruder  or  disseizor 
has  entered  into  seizin,  endeavors  soon  and  without  delay  (if  he  should 
be  present,  or  if  absent  when  he  shall  have  returned)  to  repel  and  expel 
such  persons  by  violence,  although  he  cannot  carry  out  to  its  effect  what 
he  has  commenced,  provided,  however,  when  he  fails  he  is  diligent  in 
requesting  and  in  pursuing."  Bract,  fols.  51,  52.  Mr.  Goddard,  in  dis- 
cussing an  enjoyment  which  is  not  peaceable,  defines  "vi"  in  the  phrase 
"vi  clam  aut  precario,"  to  mean  violence  or  force  and  strife,  or  con- 
tention of  any  kind;  and  the  illustration  he  gives  is  where  the  enjoy- 
ment has  been  during  a  period  of  litigation  about  the  right  claimed,  or 
the  user  has  been  continually  interrupted  by  physical  obstacles  placed 
with  a  view  of  rendering  user  impracticable.  Goddard  on  Eas.  172. 
In  the  English  cases,  pcacefulness  and  acquiescence  (when  the  servient 
owner  knows  or  might  have  known  that  a  right  is  claimed  against  his 
jiiterest)  are  used  indifferently  as  equivalent  to  uninterrupted. 

|n  this  country  several  decisions  have  been  referred  to  as  holding 
that  prohibitions,  remonstrances  and  denials  of  the  right  by  thr  '^wner 
o^the  servient  tenement,  unaccompanied  by  any  act  of  interference 
with  the  eniovment  of  the  easement,  will  prevent  the  acquisitionof  the 
tight.  _ These  cases  are  a  legitimate  outcome  of  the  doctrine  that  the 
presumption  is  not  a  presumption  juris  et  de  jure,  but  is  a  presumption 
merely,  liable  to  be  rebutted  by  the  proof  of  circumstances  overcoming 
the  presumption  of  a  grant.  This  doctrine  is  supposed  to  have  its  chief 
support  in  Powell  v.  Bagg,  8  Gray  (Mass.)  441,  69  Am.  Dec.  262. 

In  Powell  V.  Bagg,  proof  that  the  owner,  when  on  the  land,  forbade 
the  party  claiming  an  easement  of  the  flow  of  water  over  his  premises 
to  enter,  and  ordered  him  off,  while  there  for  the  purpose  of  repairing 
the  acqueduct,  was  adjudged  to  be  competent  evidence  of  an  interrup- 
tion and  an  instruction  that  words,  however  strongly  denying  the  right 
claimed  or  forbidding  its  exercise  unaccompanied  by  any  act  or  deed, 
was  not  an  interruption  of  the  user  or  enjoyment,  was  held,. to  be  de- 
fective and  tended  to  mislead  the  jury.  The  evidence  before-the.trial 
court  is  not  fully  reported.  Evidence  that  the  owner  of  the  land  for- 
bade the  other  party  to  enter,  and  ordered  him  off,  was  undoubtedly 
competent  as  part  of  the  plaintiff's  case.  Whether  what  occurred  at 
th^t  time  would  amount  to  an  interruption  oTthe  easement,  would  de- 
pend upon  circumstances,  upon  the  conduct  ot  the  party  when  torbid- 
den  to  enter  or  wlien  ordered  off.  Lf  the  owner  nf  fhp  ':;prvipn<-  tpnp- 
ment,  being  on  the  premises,  forbids  tlie  owner  of  the  easement  to 
enter  for  the  purpose  of  enjoying  it  and  orders  him  off,  and  the  latter, 
on  a  well-grounded  apprehension  that  the  former  means  to  enforce 
obedience  to  his  commands,  desists  and  withdraws,  an  action  on  the 


Ch.  2)  PRESCRIPTION  135 

case  for  disturbance  of  the  right  would  lie.  This  view  must  have  been 
present  in  the  mind  of  the  court,  else  why  restrict  the  prohibition  to 
place — on  the  land?  To  give  certainty  to  the  owner's  purpose?  A  pro- 
hibition delivered  elsewhere  might  be  so  vehement  and  emphatic  as  to 
leave  the  denial  of  tlie"  right  equally  beyond  a  doubt.  On  any  other 
view  of  the  case,  as  was  said  in  C.  &  N.  W.  R.  R.  Co.  v^JHijag,  90 
111.  340,  rthe  circumstances  of  the  place  where  the  forbiddance  was 
rnade,  whethel"  on  or  off  the  land,  would  be  immaterial."  If  facts  such_^ 
as  are  above  indicated,  appeared  in  the  case,  the  charge  was,  in  the 
language  of  the  court,  "defective,  and  tended  to  mislead  the  jury  in 
applying  the  evidence  to  the  rule  of  law  upon  which  the  title  of  the  de- 
fendant to  the  easement  rested."  Certain  expressions  from  the  opinion 
have  been  quoted  as  indicating  that  a  verbal  denial  of  the  right  will 
operate,  ipso  facto,  to  determine  the  right.  If  that  view  be  adopted, 
or  the  suggestion  of  Mr.  Justice  Woodbury,  (3  Woodb.  &  M.  551,) 
that  complaints  and  the  taking  of  counsel  against  such  encroachments 
will  bar  the  right,  be  followed,  it  is  obvious  that  rights  by  prescription 
will  be  of  little  value. 

None  of  the  authorities  cited  by  the  learned  judge  in  Powell  v.  Bagg, 
goes  to  the  extent  contended  for.  The  passage  quoted  from  Bracton, 
[that  an  easement  will  be  acquired  by  its  exercise  under  a  claim  of  right 
per  patientiam  veri  domini  qui  scivit  et  non  prohibuit  sed  permisit  de 
consensu  tacito,  is  followed  by  the  comment  that  sufferance  is  taken 
for  consent,  and  thai:  if  the  lord  of  the  property,  through  sufferance, 
has,  when  present  and  knowing  the  fact,  allowed  his  neighbor  to  en  toy 
on  his  estate  a  servitude  for  a  long  time  pcaccablv  and  without  interrup- 
tion from  such  enjoyment  nnrl  t;iiffer;mrp,  there  is  a  presumption. of 
consent  and  willingness.  Bract,  lib.  2,  c.  23,  §  1.  fin  the  passage  re-| 
ferred  to  in  Greenleaf,  the  language  is  that  the  user  must  be  adverse — \ 
that  is,  under  a  claim  of  title — with  the  knowledge  and  acquiescence  of\ 
the  owner  of  the  land,  and  uninterrupted.  2^Greenl.  Ev.  §  539.  In  j 
Sargent  v.  Ballard,  9  Pick.  (Mass.)  254,  255,  Weld,  J.,  in  discussing  the 
methods  by  which  a  claim  of  title  by  prescription  may  be  controverted 
by  disproving  the  qualities  and  ingredients  of  such  a  title,  says  that 
"evidence_piigbt  be  q-iven  to  prove  that  the  use  had  been  interrupted, 

therebv   disproving   a   COntJn'T^^I    nrgniV^rprirp   nf   |)ip   owner    fnr   tvypnty 

years."  In  Arnold  v.  Stevens,  24  Pick.  (Mass.)  112,  35  Am.  Dec.  305, 
the  plaintiffs'  claim  was  of  a  right  to  dj^ore,  under  a  grant  by  deed. 
They  had  not  exercised  the  riglTt  for  forty  years.  In  the  meantime  the 
owner  had  occupied  and  cultivated  the  surface  of  the  land.  The  court 
held  that  there  was  no  enjoyment  hostile  to  the  easement,  for  the  owner 
of  the  land  had  done  "nothing  adverse  to  the  rights  of  the  owners  of 
the  easement — nothing  to  which  they  could  object,  or  which  would  ap- 
prise them  of  the  existence  of  any  hostile  claim,  and  no  acquiescence, 
therefore,  existed  from  which  a  conveyance  could  be  presumed."  In 
Monmouthshire  Canal  Co.  v.  Harford,  1  C.,  M.  &  R.  614,  evidence 
was  given  of  applications  made  on  behalf  of  the  claimants  of  the  ease- 


136  ORIGINAL  TITLES  (Part  1 

ment  for  permission  to  exercise  tiie  right.  The  court  held  that  permis 
sion  asked  for  and  received  was  admissible  to  show  that  the  enjoyment 
was  not  of  right  nor  continuous  and  uninterrupted,  for  "every  time,  the 
occupiers  asked  for  leave  they  admitted  that  the  former  license  had  ex- 
])ircd,  an"crthat  the  continuance  of  the  enjoyment  was  brokeri?^  In  nei- 
tlTer  of  these  cases  was  the  effect  of  verbal  remonstrances  or  com- 
plaints, as  evidence  of  an  interruption  of  enjoyment,  considered. 

Nor  do  the  additional  English  cases  cited  by  plaintiff's  counsel  in  his 
brief  meet  the  point  under  consideration.  In  Livett  v.  Wilson,  3  Bing. 
115,  it  is  stated  in  the  report  that  "as  to  undisputed  use  of  the  way 
there  was  conflicting  testimony,  but  the  weight  of  the  evidence  showed 
that  the  alleged  right  had  been  pretty  constantly  contested,  and  the  de- 
fendant, upon  recently  taking  some  adjoining  premises,  the  approach 
to  which  by  the  entrance  he  claimed  into  the  yard,  said  'my  right  of 
way  from  the  street  to  the  yard  can  now  no  longer  be  resisted.'  "  The 
character  of  the  acts  of  resistance  does  not  appear  in  the  report  of  the 
case,  either  in  3  Bing.  or  in  10  Moore — whether  they  were  verbal  com- 
plaints or  physical  resistance.  I  do  not  find  in  either  report  of  the  case 
any  warrant  for  the  assertion  of  Tucker,  P.,  (Xichols  v.  Aylor,  7  Leigh 
[Va.]  565,)  that  "repeated  complaints  and  denials  of  the  title  of  his  ad- 
versary were  considered  as  sufficiently  rebutting  the  presumption  of  a 
grant."  The  only  pertinency  this  case  has  to  the  subject  now  consid- 
ered, arises  from  the  manner  in  which  the  case  was  left  to  the  jury. 
The  judge  left  to  the  jury  to  find  whether  or  not  the  right  had  been 
granted  by  deed,  instead  of  submitting  to  them  the  questions  of  fact 
upon  which  the  law  presumes  a  grant.  I  agree  that,  if  the  issue  upon 
such  a  claim  of  right  is  whether  a  deed  in  fact  has  been  made,  proof 
of  verbal  complaints  on  or  olt  the  locus  in  quo,  as  well  as  proof  tliat 
no  deed  in  fact  was  made  during  the  continuance  of  the  user,  would 
be  admissible  and  competent  evidence;  and  such  evidence  would  gen- 
erally determine  the  issup.  But  this  method  of  leaving  the  question  to 
juries  has  been  condemned  by  the  English  courts,  and  is  at  variance 
with  the  doctrine  generally  received  by  the  courts  of  this  country. 

In  Olney  v.  Gardner,  4  M.  &  W.  495,  the  decision  was  that,  where 
there  was  unity  of  possession  of  the  dominant  and  servient  tenements, 
the  time  during  which  such  possession  was  continued  must  not  only  be 
excluded  in  the  computation  of  the  twenty  years,  but  destroyed  alto- 
gether the  effect  of  the  previous  possession  by  breaking  the  continuity 
of  enjoyment.  In  Bright  v.  Walker,  1  C,  M.  &  R.  211,  it  was  held  that, 
as  against  the  reversioner,  the  enjoyment  of  an  easemenfduring  a  ten- 
ancy for  life  was  not  to  be  recK'oned  as  part  of  the  prescriptive  period. 
"Eaton  V.  Swansea  Water  Works,  17  O.  B.  267,  was  an  action  for  dis- 
turbance  of  a  water-course  claimed  by  adverse  user.  The  court  held 
that  interruptions,  though  not  acquiesced  in  for  a  year  under  statute  2 
and  3  William  IV,  might  show  that  the  enjoyment  was  never  of  right, 
but  was  contentious  throughout;  and  there  being  evidence  that  the 
owner  of  the  servient  tenement  was  in  the  habit  of  stopping  up  the 


Ch.  2)  PRESCRIPTION  137 

trench  whenever  it  was  made,  the  neglect  of  the  judge  to  answer  a  ques- 
tion propounded  by  a  juror  as  to  what  would  be  the  effect  in  law  of  a 
state  of  perpetual  warfare  between  the  parties  was  not  a  satisfactory 
method  of  leaving  the  case  to  the  jury.  In  Tickle  v.  Brown,  4  A.  &  E. 
369,  it  was  held  that  the  words  "enjoyed  by  any  person  claiming  a 
right,"  and  "enjoyment  thereof  as  of  right,"  in  the  statute,  meant 
an  enjoyment  had  not  secretly,  or  by  stealth,  or  by  tacit  suffer- 
ance, or  by  permission  asked  from  time  to  time  on  each  occasion  or  on 
many,  and  that,  therefore,  proof  of  a  parol  license  was  competent  to 
show  tha^  the  enjoyment  was  permissive,  ?^nd  not  undfr  ^  rlnini-rii. 
rjglit.  'I'lie  other  two  English  cases  referred  to  (Benneson  v.  Cartright, 
5  ir&  S.  1 ;  Glover  v.  Coleman,  L.  R.  10  C.  P.  108)  were  simply  inter- 
pretations of  section  4  of  the  statute  2  and  3  William  IV,  and  are  not 
authorities  with  respect  to  the  principles  upon  which  prescriptive  rights 
are  acquired  or  prevented  at  common  law.  In  each  of  the  cases  there 
was  an  actual  physical  obstruction  of  the  user,  and  these  cases  turned 
upon  the  meaning  of  the  words  "submitted  to  or  acquiesced  in,"  con- 
tained in  section  4,  which  provided  that  no  act  or  matter  should  be 
deemed  an  interruption  unless  it  should  have  been  submitted  to  or  ac- 
quiesced in  for  one  year.  Mr.  Goddard,  writing  after  all  these  cases 
were  decided,  in  his  excellent  treatise,  says:  "It  is  commonly  said  that 
no  easement  can  be  acquired  by  prescription  if  the  user  has  been  en- 
joyed vi  clam  aut  precario.  The  word  vi  does  not  simply  mean  by  vio- 
lence or  force,  but  it  means  also  by  strife  or  contention  of  any  kind — 
as,  for  instance,  that  the  enjoyment  has  been  during  a  period  of  litiga- 
tion about  the  right  claimed,  or  that  the  user  has  been  continually  dis- 
puted and  interrupted  by  physical  obstacles  placed  with  a  view  of  ren- 
dering the  user  impracticable."  Goddard  on  Eas.  172. 
r  1  have  not  discovered  in  the  English  cases  any  intimation  that  mere 
j  denials  of  the  right,  complaints,  remonstrances,  or  prohibitions  of  user, 
I  will  be  considered  interruptions  of  the  user  of  an  easement,  or  as  indi- 
I  eating  that  the  enjoyment  of  it  was  contentious.  On  the  contrary, 
whenever  the  subject  has  been  mentioned,  it  has  elicited  expressions 
_oi-+riarked  disapprobation  of  such  a  proposition.  This  is  conspicuously 
apparent  in  the  opinions  of  Bayley,  J.,  in  Cross  v.  Lewis,  2  B.  &  C.  689; 
of  Lush,  J.,  in  Angus  v.  Dalton,  3  Q.  B.  D.  85 ;  and  of  Thesigcr  and 
Cotton,  Lords  Justices,  in  the  same  case,  as  reported  in  4  Q.  B.  D.  172, 
186.  Thesiger,  L.  J.,  in  considering  the  nature  of  the  evidence  which 
shall  contradict,  explain  or  rebut  the  presumption  of  right  arising  from 
an  uninterrupted  possession  of  twenty  years,  says  that  it  is  "not  suffi- 
cient to  prove  such  circumstances  as  negative  an  actual  assent  on  the 
part  of  the  servient  owner,  or  even  evidence  of  dissent  short  of  actual 
interruption  or  obstruction  to  the  enjoyment."  In  Angus  v.  Dalton,  the 
easement  was  not  such  as  came  within  the  statute  2  and  3  William  IV ; 
and  the  case  was  discussed  and  decided  upon  the  principles  of  the  com- 
mon law,  independently  of  the  statutory  provision. 

Some  confusion  on  the  subject  has  arisen  from  the  failure  to  discrim- 


138 


ORIGINAL   TITLES 


(Part  1 


inate  between  negative  and  affirmative  easements ;  negative  easements, 
such  as  easements  of  light,  and  of  the  lateral  support  of  buildings, 
which  cannot  lawfully  be  interrupted  except  by  acts  done  upon  the 
servient  tenement;  and  affirmative  easements,  such  as  ways  and  the 
overflowing  of  lands  by  water,  which  are  direct  interferences  with  the 
enjoyment  b}?  the  servient  owner  of  the  premises,  and  may  be  the  sub- 
ject of  legal  proceedings  as  well  as  of  physical  interruption.  This  dis- 
tinction is  pointed  out  by  the  court  in  Sturges  v.  Bridgman,  11  Ch.-&r-^ 
852.  In  Angus  v.  Dalton,  the  Queen's  Bench  decided  that  the  negative 
easement  of  lateral  support  of  buildings  could  not  be  acquired  by  pre- 
scription, for  the  reason  that  the  owner  of  the  adjoining  premises  had 
no  power  to  oppose  the  erection  of  the  building  and  no  reasonable 
means  of  resisting  or  preventing  the  enjoyment  of  its  lateral  support 
from  his  adjoining  lands.  But  this  decision  was  overruled  in  the  Court 
of  Appeals.  Angus  v.  Dalton,  3  Q.  B.  D.  85,  4  Q.  B.  D.  162.  With 
respect  to  such  an  easement  there  is  great  force  of  reasoning  in  the  con- 
tention that  slight  acts  of  dissent  should  avail  to  defeat  the  acquisition 
of  a  right ;  for  it  would  be  unreasonable  to  compel  the  owner  of  the 
adjoining  lands  to  dig  down  and  undermine  the  foundations  or  to  put 
him  to  legal  proceedings  quia  timet  to  preserve  dominion  over  his  prop- 
erty. But  no  such  considerations  of  hardship  or  inconvenience  exist 
when  the  easement  is  a  right  of  vvay,  which,  whenever  the  right  is  ex- 
ercised, is  a  palpable  invasion  of  property  and  may  easily  be  obstructed, 
or  is  an  easement  of  flooding  lands,  which  is  really,  though  not  techni- 
cally, a  disseizin  pro  tanto,  and  can  easily  be  interrupted.  ^ 

VThe  whole  doctrine  of  prescription  is  founded  on  public  policy.  J  It 
is  a  matter  of  public  interest  that  title  to  property  should  not  long  re- 
main uncertain  and  in  dispute.  The  doctrine  of  prescription  conduces, 
in  that  respect,  to  the  interest  of  society,  and  at  the  same  time  is  pro- 
motive of  private  jiistice  by  putting  an  end  to  and  fi.xinga  limit  to^con^ 
tention  and  strife.  ICrQte&ts  and  mere  denials  of  right  are  evidence^ that 
the  right  is  in  dispute,  as  distinguished  from  a  contested  right,  li 
such   protests  and   denials,   unaccompaniedby   anact  which    in   law 

arnnijptQ  to  a  flUtnrhnni'P  nnri   ic  actionable  nSSUcHTISe'permittcd  tO  pUt 

the  i:ig4it  in  nheyrmce.  the  policy  of  the  law  will  be  defeated,  and  pre- 
scriptive  rights  be_2la££d-UPon  the  most  unstable  nf  fnundntinrm.  Sup- 
pose an  easement  is  enjoyed,  sa}',  for  thirty  years.  If  after  such 
continuance  of  enjoyment  the  right  may  be  overthrown  by  proof  of  pro- 
tests and  mere  denials  of  the  right,  uttered  at  soniejxniQte  but  service- 
able time  during  that  period,  it  is  manifest  that  a  right  held  by  so  un- 
certain a  tenure  will  be  of  little  value.  If  the  easement  has  been  inter- 
rupted by  any  act  which  places  the  owner  of  it  in  a  position  to  sue  and 
settle  his  right,  if  he  chooses  to  postpone  its  vindication  until  witnesses 
are  dead  or  tlie  facts  have  faded  from  recollection,  he  has  his  own 
folly  and  supineness  to  which  to  lay  the  blame.  Bii^_if_Ji^_in£j:£_4)ro- 
tests  and  denials-l:m  his  adversary,  his  right_niight  be  ^efgatgdJiejYQiild 
be_£lacedat_an  unconscionable -disadvantage.     He  could  neither  sue 


Ch.2) 


PEESCRIPTION 


139 


and  establish  his  right,  nor  could  he  have  the  advantage  usually  derived 
from  long  enjoyment  in  quieting  titles. 

Protests  and  remonstrances  bv  the  owner  of  the  servient  tenement 
against  the  use  of  the  easement,  rather  add  to  tlie  streng^th  of  the  claim  " 
of"a"prescriptive  right;  fpr^  holding  in  defijnc^_Qf_sucli_e>Lpxnstn1;itinns' 
isjdemonstrative^PXQof  that  thejmjoyT-nent  is  under  a  claim  of  right, 
fiostjTe^d  adverse ;  and  if  they  be  not  accompanied  by  acts  amounting 
to  a  disturbance  of  the  right  in  a  legal  sense,  they  are  no  interruption 
or  obstruction  of  the  enjoyment. 

The  instructions  of  the  judge  were  erroneous  in  this  respect.  The 
j ury^  should  have  been  told  that  a  continuous  enjoyment  under  a  claim 
of  right  ior  twenty  years,  not  obstructed  by  some  suable  act,  and  hav-  x/^,^iXx.omlJ 
i n^the  other  qualities  ot  an  adverse  user,  confers  an  indcteasible  right . 
It  is  said  that  the  instruction  was  given  in  view  of  evidence  tending  to 
show  interruptions  in  fact  of  the  right,  and  therefore  the  error  was 
harmless.  As  the  judgment  will  be  reversed  on  other  grounds,  and 
the  case  may  be  retried,  we  prefer  not  to  discuss  the  evidence  at  this 
time. 

On  the  two  exceptions  considered  here,  we  think  the  judgment  should 
be  reversed.     *     *     *  15 


^^nyxuyf^ 


ir-Dennith  v.  Annv(>-.  00  Ta.  1^1  (1.«:T0);  Jordnn  v.  Lan?,  22  S.  C.  159 
(1,S85);  Kiiiil)iill  v.  I.ndd,  42  Vt.  747  (1S70).  ace.  Chicago  &  N.  W.  R.  Co.  V. 
Iloat,'.  00  III.  .T'.n  (1S7S)  :  Crosier  v.  I?ro\vii,  Cf,  W.  Va.  27."..  Q5  S.  E.  r>20,  25 
L.  R.  A.  (N.  S.)  174  (1000);  Roid  v.  Cnnictt,  101  Va.  47.  4.".  S.  E.  1S2  (100.3), 
contra.  See  Andrics  v.  Detroit,  (J.  II.  &  M.  R.  Co.,  10.")  Mirli.  r">7,  (J.3  N.  W. 
52(;  (ISO-.t;  Rollins  v.  Blackdcii.  112  Me.  4."0.  02  Atl.  .'.21  (1014).  In  some 
states  there  arc  statntes  pnn  i(]iiif  thiit  certiiin  r'ofi<-i'v;  sli-ill  itinrnnr  riiijim- 
in^  of  a   tirescijjmvQ  r{,<rht-      s;.>,7  s;tims:nn'a  Am.   St   Law,  §  2204. 

V\s  to  the  olfeT-t  of  a  fence  hnilt  or  attempted  to  be  built  across  way  claim- 
ed hv  prescrii)tion  as  intermiition  of  user,  see  Rrayden  v.  New  York,  N.  H.  & 
H.  R.  R.  Co..  172  Mass.  22.").  .".1  N.  E.  1081  (1808),  and  Connor  v.  Sullivan, 
40  Conn!  2G    16  Am.  Rep.  10  (187:'.). 

CJ^ac  KiN(i7VA.,  in  connection  with  his  use  of  Blackacre,  had  for  five  years 
used  adversely  a  way  over  B.'s  land;  A.  then  conveyed  Blackacre  to  C,  "with 
the  aiipurtenances."  and  C.  continued  siicli  ;i(]v"r>-o  iw^  f^|ir  the  bnlanee  of 
the  nre.scrjptive  period^  Has  C.  acnuired  the  easement  by  prescription? 
^Vhat  wouIlI  be  the  result  If  the  words  "with  the  api)urtenances'  we  re 
omitted?  What  If  C.  were  A.'s  heir,  and  as  such  succeeded  to  A.'s  rights  in 
Blackacre?     See  Leonard  v.  Leonard,  7  Allen  (Mass.)  2l1  (18U3). 


A^-o-^ 


-^^-'v^^^o-'— «kX 


XL 


dl-t{,<^u^ 


Ir^ 


you   --^^J— ^ 


140  ORIGINAL  TITLE3  (Part  1 


CHAPTER  III 


^0^  ACCRETION 


A^ 


i-'^ 


X^rjT  GIFFORD  v.  YARBOROUGH. 


^^ 


(House  of  Lords,  1S28.     5  Biug.  163.) 


Best,  C.  J.  My  Lords,  the  question  which  your  Lordships  have 
^  proposed  for  the  opinion  of  the  Judges  is  as  follows:  "A.  is  seised  in 
hjsdcmesne  as  of  fee  of  the  manor  of  N.,  and  of  the  demesne  lands 
thereof,  which  said  demesne  lands  were  formerly  bounded  on  one  side 
by  tlie  sea.  A  certain  piece  of  land,  consisting  of  about  450  acres,  by 
the  slow,  graduaL-and  imperceptible  projection^lluvion  subsidence, 
and  accretion  of  ooze,  soil,  sand,  and  matter  slowly,  gradually,  and 
imperceptibly,  and  by  imperceptible  increase  in  long  time  ca^t  up,  de- 
posited, and  settled  by  and  from  flux  and  reflux  of  the  tide,  and  waves 
of  the  sea  in,  upon,  and  against  the  outside  and  extremity  of  the  said 
demesne  lands  hath  been  formed,  and  hath  settled,  grown,  and  accrued 
upon,  and  against,  and  unto  tlie  said  demesne  lamlZ  Does  such  piece 
of  land  so  formed,  settled,  grown,  and  accrued  as  aforesaid,  belong  to 
tlie  Crown  or  to  A.,  the  owner  of  the  said  demesne  lands  ?  There  is 
no  local  custom  on  the  subject." 

The  Judges  have  desired  me  to  say  to  your  Lordships  that  land 
gradually  and  imperceptibly  added  to  the  demesne  lands  of  a  manor, 
as  stated  in  the  introduction  to  your  Lordships'  question,  does  not  be- 
long to  tlie  crown,  but  to  the  owner  of  the  demesne  land. 

All  the  writers  on  the  law  of  England  agree  in  thisi/^iat  as  the  King 
is  lord  of  the  sea  tliat  flows  around  our  coasts,  and  also  owner  of  all 
the  land  to  which  no  individual  has  acquired  a  right  by  occupation  and 
improvement,  the  soil  tliat  was  once  covered  by  the  sea  belongs  to  him. 

But  this  right  of  the  sovereign  might,  in  particular  places,  or.  under 
circumstances,  m  all  places  near  the  sea,  be  transferred  to  crrfnin  nf 
his  subjects  by  law.  A  law  giving  such  rights  may  be  presumed  from 
either  a  local  or  general  custom,  such  custom  being  reasonable,'  and 
proved  to  have  existed  from  time  immemorial.  Such  as  claim  under 
the  former  must  plead  it,  and  establish  -their  pleas  by  proof  of  the 
existence  of  such  a  custom  from  time  immemorial. 

General  customs  were  in  ancient  times  stated  in  the  plcadin.s^s  of 
those  wno  claimed  under  them :  as  the  custom  o^^merchants,  the  cus- 
tonis  oi  the  realm  with  reference  to  innkeepers  Shd  catriers,  and  oth- 
ers of  the  same  description.  But  it  has  not  been  usual  for  a  long  time 
to  allude  to  such  customs  in  the  pleadings,  because  no  proof  is  required 


141 


Q^    3)  ACCEETION 

of  their  existence;  they  are  considered  as  adopted  into  the  common 
law  and  as  such  are  recognized  by  the  Judges  without  any  evidence. 
These  are  called  customs,  because  they  only  apply  to  particular  de- 
scriptions of  persons,  and  do  not  affect  all  the  subjects  of  the  realm; 
but  if  they  govern  all  persons  belonging  to  the  classes  to  which  they 
relate  they  are  to  be  considered  as  public  laws;  as  an  act  of  parlia- 
ment applicable  to  all  merchants,  or  to  the  whole  body  of  the  clergy, 
is  to  be  regarded  by  tlie  Judges  as  a  public  act. 

If  there  is  a  custom  regulating  the  right  of  the  owners  of  all  laiuls^ 
bordering  on  the  sea,  it  is  so  general  a  custoni  as  need  not  be  set  mit  in 
Uie  pleaclin.gs^o77f3ved  by  evidence,  but  will  be  taken  notice  ot  by  the 
Tud-es  as  part  of  the  common  law.  /We  think  there  is^a  custom  by 
which  lands  from  which  the  sea  is  j^raduaUy  and  imperceptibly  re- 
moved  by  the  alluvion  of  soil,  becomes  the  property  ot  the  person  to  /  ^ 
whose  land  it  is  attached,  although  it  has  been  in  the  fundus  mans,  and  V^^^^^^^^ 
as  such  the  property  of  the  King.  Sjich  a  custom  is  reasonably  ^^  re- 
<r.r.U  thPrirdits  oftheKing.  and  the  subjects_clnimmr  ynd^f  il;  bene- 
fidal  to  the  public;    anritTexistence  is  established  by  satisfactory 

legal  evidence.  .  ,        ,,     •  "f 

There  is  a  great  difference  between  land  formed  by  alluvion,  and 
derelict  land.  Land  formed  bv  nlluvion  must  become  useful  soil  by 
Ancrr...  too  slcjw  tO  h^  v^T'---'-^^ '  1^^^'^  of  what  is  dcpositcd  by  one 
tide  will  be  so  permanent  as  not  to  be  removed  by  the  next.  An  em- 
bankment of  a  sufficient  consistency  and  height  to  keep  out  tlie  sea 
must  be  formed  imperceptibly.  Ilut  the  sea  frequently  retires  sudden- 
ly, and  leaves  a  large  space  of  land  uncovered. 

When  the  authorities  relative  to  these  subjects  are  considered,  this 
difference  will  be  found  to  make  a  material  distinction  in  the  law  that 
applies  to  derelict  lands,  and  to  such  as  are  formed  by  alluvioi^  Un- 
less trodden  by  cattle,  many  years  must  pass  away  before  lands  formed 
by  alluvion  would  be  hard  enough  or  sutTiciently  wide  to  be  used  bene- 
ficially by  any  one  but  the  owner  of  the  lands  adjoining.  As  soon  as 
alluvion  lands  rise  above  the  water,  the  cattle  from  the  adjoming  lands 
will  give  them  consistency  by  treading  on  them;  and  prepare  them 
for  -rass  or  agriculture  by  the  manure  which  tliey  will  drop  on  them. 
When  they  are  but  a  yard  wide  the  owner  of  the  adjoimng  lands  may 
render  them  productive.  Thus  lands  which  are  of  no  use  to  the^ing 
will  be  nc.fnl  to  the  owner  of  the  adjoining  lands,  and  he  will^cauire 
a  Title  to  them  on  'the  same  principle  that  all  titles  to  lanchjiaye^been 
nT:;^nired  by  individuals,  viz.  bv  occupation  and  improvenient. 

iocke  in  a  passage  in  his  Treatise  on  Government,  in  which  he  de- 
scribes the  grounds  of  the  exclusive  right  of  property,  says:  God 
and  man's  reason  command  him  to  subdue  the  earth;  that  is.  im- 
prove it  for  the  benefit  of  life,  and  therein  lay  out  something  upon  it 
that  was  his  own,  his  labour.     He  that  in  obedience  to  that  command 


142  ORIGINAL  TITLES  (Part  1 

subdued,  tilled,  and  sowed  any  part  of  it,  thereby  annexed  to  it  some- 
thing that  was  his  property  which  another  had  no  title  to,  nor  could 
without  injury  take  from  him." 

This  passage  proves  the  reasonableness  of  the  custom  that  assigns 
lands  gained  by  alluvion  to  the  owner  of  the  lands  adjoining. 

The  reasonableness  is  further  proved  by  this,  that  the  land  so  gained 
is  a  compensation  for  the  expense  of  embankment,  and  for  losses 
which  frequently  happen  from  inundation  to  the  owners  of  lands  near 
the  sea. 

This  custom  is  beneficial  to  the  public.  Much  land  which  would  re- 
main for  years,  perhaps  for  ever,  barren,  is  in  consequence  of  this  cus- 
tom rendered  productive  as  soon  as  it  is  formed.  Although  the  sea  is 
gradually  and  imperceptibly  forced  back,  the  Icind  formed  by  the  allu- 
vion will  become  of  a  size  proper  for  cultivation  and  use;  but  in  the 
mean  time  the  owner  of  the  adjoining  lands  will  have  acquired  a  title 
to  it  by  improving  it. 

The  original  deposit  constitutes  not  a  tenth  part  of  its  value,  the 
other  nine  tenths  are  created  by  the  labour  of  the  person  who  has  oc- 
^cupied  it;  and,  in  the  words  of  Locke,  the  fruits  of  his  labour  cannot, 
without  injury,  be  taken  from  him. 

The  existence  of  this  custom  is  established  by  legal  evidence.  In 
Bracton,  book  2,  cap.  2,  there  is  this  passage:  "Item,  quod  per  allu- 
vionem  agro  tuo  flumen  adjecit,  jure  gentium  tibi  acquiritur.  Est 
autem  alluvio  latens  incrementum ;  et  per  alluvionem  adjeci  dicitur 
quod  ita  paulatim  adjicitur  quod  intclligere  non  possis  quo  momento 
temporis  adjiciatur.  Si  autem  non  sit  latens  incrementum,  contrarium 
erit." 

In  a  treatise  which  is  published  as  the  work  of  Lord  Hale,  treating 
of  this  passage,  it  is  said :  "That  Bracton  follows  in  this  the  civil  law 
writers ;  and  yet  even  according  to  this  the  common  law  doth  regular- 
ly hold  between  parties.  But  it  is  doubtful  in  case  of  an  arm  of  the 
sea.'.'  Hale  de  Jure  Maris,  p.  28.  It  is  true  that  Bracton  follows  the 
civil  law,  for  the  passage  above  quoted  is  to  be  found  in  the  same 
words  in  the  Institute,  lib.  2,  tit.  1,  §  20.  But  Bracton,  by  inserting 
this  passage  in  his  book  on  the  laws  and  customs  of  England,  presents 
it  to  us  as  part  of  those  laws  and  customs.  Lord  Hale  admits  that  it 
is  the  law  of  England  in  cases  between  subject  and  subject;  and  it 
would  be  difficult  to  find  a  reason  why  the  same  question  between  the 
crown  and  a  subject  should  not  be  decided  by  the  same  rule.  Bracton 
wrote  on  the  law  of  England,  and  the  situation  which  he  filled,  namely, 
that  of  Chief  Justice  in  the  reign  of  Henry  the  Third,  gives  great 
authority  to  his  writings.  Lord  Hale  in  his  History  of  the  Common 
Laws  (cap.  7)  says,  tliat  it  was  much  improved  in  the  time  of  Bracton. 
This  improvement  was  made  by  incorporating  much  of  the  civil  law 
with  the  common  law. 


Ch.  3)  ACCRETION  143 

We  kgoM^^that  many  of  the  maxims  of  t^*^  rnmmnn  la^y  are  borrow- 
ed from  the  civil  Liw.  and  are  still  quoted  in  tlie  language  of  the  civil 
law.  Notwithstanding  the  clamour  raised  by  our  ancestors  for  the 
restoration  of  the  laws  of  Edward  the  Confessor,  I  believe  that  these 
and  all  the  Norman  customs  which  followed  would  not  have  been  suffi- 
cient to  form  a  system  of  law  sufficient  for  the  state  of  society  in  the 
times  of  Henry  the  Third.  Both  courts  of  justice  and  law  writers 
were  obliged  to  adopt  such  of  the  rules  of  the  digest  as  were  not  in- 
consistent with  our  principles  of  jurisprudence.  Wherever  Bracton 
got  his  law  from  Lord  Chief  Baron  Parker,  in  Fortescue  408,  says, 
"as  to  the  authority  of  Bracton,  to  be  sure  many  things  are  now  alter- 
ed, but  there  is  no  colour  to  say  it  was  not  law  at  that  time.  There 
are  many  things  that  have  never  been  altered,  and  are  now  law."  The 
laws  must  change  with  the  state  of  things  to  which  they  rolnte ;  but, 
according  to  Chief  Baron  Parker,  the  rules  to  be  found  in  Bracton  are 
good  now  in  all  cases  to  which  those  rules  are  applicable.  But  the  au- 
thority of  Bracton  has  been  confirmed  by  modern  writers,  and  by  all 
the  decided  cases  that  are  to  be  found  in  the  books.  The  same  doctrine 
that  Bracton  lays  down  is  to  be  found  in  2  Rolle's  Abr.  170;  in  Com. 
Dig.  tit.  Prerogative,  (D.  61 ;)  in  Callis,  (Broderip's  edition,)  p.  51 ;  and 
in  2  Blac.  Com.  261. 

In  the  case  of  the  Abbot  of  Peterborough,  Hale  de  Jure  Maris, 
p.    29,    it    was    holden :     "Quod,    secundum    consuetudinem    patriae, 
domini  maneriorum  prope  mare  adjacentium,  habcbunt  marettum  et 
sabulonem  per  fluxus  et  refluxus  maris  per  tcmporis  incrementum  ad 
terras  suas  costerae  maris  adjacentes  projecta."     In  the  treatise  of 
Lord  Hale  it  is  said,  "here  is  custom  laid,  and  he  relies  not  barely  on, 
the  case  without  it."     But  it  is  a  general,  and  not  a  local  custom,  ap-i 
plicable  to  all  lands  near  the  sea,  and  not  to  lands  within  any  particular, 
district.    The  pleadings  do  not  state  the  lands  to  be  within  any  district,' 
and  such  a  statement  would  have  been  necessary  if  the  custom  pleaded 
were  local.     The  consuetudo  patriae  means  the  custom  of  all  parts  oi 
the  country  to  which  it  can  be  applied ;  that  is,  in  the  present  case,  all 
sucji  parts  as  adjoin  the  sea. 

The  case  of  The  King  v.  Olds  worth  (Hale  de  Jure  Maris,  p.  14)  con- 
firms that  of  the  Abbot  of  Peterborough  as  to  the  right  of  the  owner 
of  the  adjoining  lands  to  such  lands  as  were  "secundum  majus  et  minus 
prope  tenementa  sua  projecta"  (Id.  p.  29).  That  case  was  decided 
against  the  owner,  because  he  also  claimed  derelict  lands  against  the 
crown. 

Here  it  will  be  observed  that  there  is  a^  distinction  made  between 
lands  derelict  and  lands  formed  by  alluvion :  which  distinction,  I  think, 
is  founded  on  the  principle  that  I  have  ventured  to  lay  down,  namely, 
that  alluvion  must  be  gradual  and  imperceptible  but  the  derelictioiijQf 
land  by  the  sea  is  frequently  sudden,  leaving  at  once  large  tracts  of  its 


OJjLMAt^r^       dLcAAjU^XMfV^. 


L 


144  ORIGINAL  TITLES  (Part  1 

bottom  uncovered,  dry,  and  fit  for  the  ordinary  purposes  for  which 
land  is  used.  But  still  what  was  decided  in  this  case  is  directly  appli- 
cable to  the  question  proposed  to  us.  The  Judges  are,  therefore,  war- 
ranted by  justice,  by  public  policy,  by  the  opii^jons  of  learned  writers, 
and  the  authority  of  decided  cases,  in  giving  to  your  Lordships'  ques- 
tion the  answer  which  they  have  directed  me  to  give. 

My  Lords,  the  answer  to  your  Lordships'  question  is  the  unanimous 
opinion  of  all  the  Judges  who  heard  the  arguments  at  your  Lordships' 
bar.  For  the  reasons  given  in  support  of  that  opinion  I  alone  am  re- 
sponsible. Most  of  my  learned  Brothers  were  obliged  to  leave  town 
for  their  respective  circuits  before  I  could  write  what  I  have  now  read 
to  your  Lordships.  I  should  have  spared  your  Lordships  some  trouble 
if  I  had  had  time  to  compress  my  thoughts ;  but  I  am  now  in  the  midst 
of  a  very  heavy  Nisi  Prius  sittings,  and  am  obliged  to  take  from  the 
hours  necessary  for  repose  the  time  that  1  have  employed  in  preparing 
this  opinion.  If  it  wants  that  clearness  of  expression  which  is  proper 
for  an  opinion  to  be  delivered  by  a  Judge  to  this  House,  I  hope  that 
your  Lordships  will  consider  what  I  have  stated  as  a  sufticicnt  apology 
for  this  defect. 

The  Lord  Chancellor.  My  Lords,  I  beg  to  express  my  thanks 
to  the  learned  Chief  Justice,  and  to  the  Judges,  for  the  attention  they 
have  paid  to  this  subject;  and  I  have  only  to  add  that  I  entirely  concur 
in  the  conclusion  at  which  they  have  arrived ;  and  1  would  recommend 
to  your  Lordships,  as  a  necessary  consequence  of  the  opinion  which 
has  been  expressed,  that  the  judgment  of  the  Court  of  King's  Bench 
upon  the  matter  should  be  affirmed. 

Earl  of  Eldon.  My  Lords,  I  heard  only  part  of  the  argument, 
and  therefore  I  have  some  difficulty  in  stating  my  opinion  in  this  case; 
but  having  had  my  attention  called  to  subjects  of  the  same  nature  on 
former  occasions,  it  does  appear  to  me,  I  confess,  after  reading  the 
finding  of  the  jury,  that  the  opinion  of  the  Judges  must  be  that  whiclT_ 
the  learned  Chief  Justice  has  now  expressed.  1  therefore  concur  in 
the  opinion  the  Lord  Chief  Justice  has  expressed. 

Judgment  affirmed.^      -.  ■■^  r^       .  •■      '      '■' 

1  "Blackstone  says  (vol.  II,  cliap.  XVI),  'As  to  lands  gained  from  the  sea,  ei- 
ther hr  alluvion  by  the  washing  up  of  sand  and  earth,  so  as  in  time  to  jnake 
terra  hrma.  or  by  dereliction,  as  when  the  sea  slmjiks  back  below  the  usual 
water  mark ;  in  these  cases  the  law  is  held  to  be,rthiit  if  this  'z-a\\\  be  little  by 
little,  bv  Somali  and  imperceptil^lo  flPP-rppt/lT  ghall  go*To  tUp  nwiipr  of  flip  lan(" 
ad.ioining.'  BlackstOne  then  introduces  by  way  ot  explanation  a  reference  fr„ 
a  douDrrui  brocard  de  minimis  non  curat  lex,  which  Lord  Chelmsford  in  Attor- 
ney General  v.  Chambers,  4  De  G.  &  J.  55,  at  page  66,  properly  disclaims.  The 
true  reason  for  the  principle  of  law  in  regard  to  foreshores  is  the  same  reason 
as  the  principle  in  regard  to  river  banks,  i.  e.,  that  it  is  founded  upon  security 
and  general  convenience."  Atty.  Gen.  of  Southern  ^'igeria  v.  Holt,  [1915]  A.  C. 
599,  613,  per  Lord  Shaw  of  Dunfermline.  See  Banks  v.  Ogden,  2  Wall.  57  IT 
L..  Ed.  818  (1864). 

"Courts  and  text-writers  sometimes  give  very  inadequate  reasons,  born  of  a 
fancy  or  conceit,  for  very  wise  and  beneficial  principles  of  the  common  law ;. 


Ch.  3)  ACCRETION  145- 

HALSEY  V.  McCORMICK. 

(Court  of  Appeals  of  New  York,  ISoS.     18  N.  Y.  147.) 

Appeal  from  the  Supreme  Court. 

This  was  an  action  against  Jacob  McCormick,  to  recover  a  small 
piece  of  land  in  the  villas^e  of  Ithaca,  lying  between  what  was  former- 
ly ThrnortOanFoTslxM^^  the  present  centre  of  that 
creek.    The  lotoftlie  plainti-ff,  whicft,  as  he  claims,  covers  the  land  in         :^ 
dispute,  is  described  in  a  conveyance  to  one  Bennett,  under  whom  !'^^Q^^,u«JZi^jA' 
holds,  as  running  "south  from  the  turnpike  to  the  bank  of  Six  ^^^^^^^^TT;^^  , 
Creek."    Bennett  was  also  the  grantor  of  Jacob  McCormick,  to  whom,     '<^<*'^^'<-~j  ' 
subsequently  to  the  deed  under  which  the  plaintiff  derives  title,  he  con-  x^*.^'^    C^ 
veyed  a  parcel  of  land  lying  in  the  bed  of  Six  Mile  Creek,  adjoining 
the  land  of  the  plaintiff.    The  water  of  the  creek  having  been  caused 
to  recede,  a  strip  of  dry  ground  was  formed  at  the  foot  of  the  \3nk,/^^^;^  ^ 
which  was  the  land  in  dispute  m  this  action. 

On  the  first  trial,  hi  1853,  the  court  held  that  the  plaintiff  was  bound- 
ed on  the  south  by  the  high  water  mark  of  the  north  bank  of  the  creek. 
Upon  appeal  to  this  court,  the  judgment  was  reversed,  the  court  hold-  — 
ing  that  the  plaintiff's  land  extended  to  low  water  mark.  13  N.  Y.  296.  Lu^^ 
After  this  decision,  the  original  defendant  died,  and  the  action  was 
continued  against  his  executors.  Upon  the  second  trial,  it  appeared 
that  formerly  the  north  bank  of  the  creek,  at  low  water,  formed  the 
south  line  of  the  land  in  dispute,  but  that  the  original  defendant,  Jacob 
McCormick,  by  deepening  the  bed  of  the  stream  on  the  south  sid^^nd 
placing  stones  upon  a  ridge  in  the  centre,  had  turned  the  water  so  as 
trTiPovp  ^  nnrfjnn  op  the  north  side  of  what  was  the  bed  of  the  stream 


djy,  and  thatupon  this  portion  he  had  constructed  a  race  to  his  mill, 
the  north  bank  of  which  was  the  original  north  bank  of  the  stream . 

l^he  cause  was  tried  without  a  jury,  and  the  judge  tound  as  "facts 
"that  the  south  line  of  the  plaintiff's  land  was  north  of  the  premises  in 
question;   that  the  waters  of  the  creek,  where  they  pass  the  plaintiffs qs^  OU^ 
lot^dojow,  and  have  for  many  years,  run  further  to  the  south  than  *^>|^-  ^ 

wh^TThTcITkc  was  ereckil,  and  that  the  change  in  the  channel  was^f^^,^  ^^  ^ve. 
caused  by  artificial  means  used  by  Jacob  :\IcCormick,"  the  original  de- 
fendant, as  above  indicated.     He  therefore  ordered  jud^gnjjrTlt  for  the 

and  we  cannot  help  thinking  this  is  somewhat  so  as  to  the  right  of  a  riparian 

owner  to  accretions  and  relictions  in  front  of  his  land.     The  reasons  usually 

given  for  the  mle  are  either  that  it  falls  within  the  maxim.  (Je^unnimi.s  lex 

non  curak  or  that  because  the  riparian  owner  is  liable  to  lose  soil  by  the  ac- 

tioli  or  encroachment  of  the  water,  he  should  also  have  the  beneht  of  any 

land  gained  bv  the  same  action.     But  it  seems  to  us  that  the  rule  rests  upon  a 

much'  broader  principle,  and  has  a  much  more  important  purpose  in  view,  viz  ^^    A 

to  nieserve  the  fundainnntm  rinnrinu  riu-ht^n  which  all  others  depend,  and     ^U(r^%^  ^ 

ter"     LiiinVu'ev  v.  biaic.  ')!!  Minn.  LSI,  'jW  ^.  \^  ■  H---*.  1'^  I^-  I^-  ^-  *^".^^' ;'        !         ^^^ 
sTliep.  541  (iso;!),  per  Mitchell,  J.     See  also  Lovingston  v.  St.  Clair  County. 
64*  111.  5G.  58,  16  Am.  Rep.  516  (1872). 
Aig.Pbop. — 10 


146  ORIGINAL  TITLES  (Part  1 

defendants,  which  was  affirmed  at  general  term  in  the  sixth  district, 
and  the  plaintiff  appealed  to  this  court. 

Pratt,  J.  It  was  settled  by  this  court,  when  this  cause  was  before 
it  upon  a  former  occasion,  that  the  plaintiff's  south  line  did  not  origi- 
nally extend  to  the  centre  of  the  rrp^k,  hut  only  to  thpjme  of  low  wa- 
ter on  the  north  bank.  Assuming  this  to  be  settled,  tlie  plaintiff  does 
not  claim  that  as  the  creek  originally  ran,  the  land  in  dispute  was  em- 
braced within  the  boundaries  of  his  lot.  But  if  I  understand  it,  he 
laims  that  the  land  in  dispute  is^alluvioti^  and  he  is  entitled  to  it  as  a 
riparian  owner.^  But  to  acquire  title  to  land  as  alluvion,  it  is  necessary 
that  its  increase  should  be  imperceptible — that  the  amount  added  in 
each  moment  of  time  should  not  be  perceived.  When  die  change  is  so 
gradual  as  not  to  be  perceived  in  any  one  moment  of  time,  the  proprie- 
tor, whose  land  on  the  bank  of  a  river  is  thus  increased,  is  entitled  to 
the  addition.  Ang.  on  Watercourses,  §  53 ;  2  Bl.  Com.  262 ;  3  Kent, 
,.  519. 

It  is  enough  that  no  such  fact  is  found  in  this  case,  as  that  this  piece 
of  ground  is  alluvion — that  it  was  formed  by  imperceptible  accretion. 
The  evidence  shows  that  it  was  not  thus  formed.  McCormick  deepen- 
ed the  bed  of  the  stream  on  the  south  side,  and  placed  stones  along  the 
centre  so  as  to  confine  the  water  in  the  channel  thus  deepened,  and  by 
this  means  the  land  in  question  was  left  bare.  He  may  have  been 
guilty,  by  these  acts,  of  a  violation  of  the  riparian  rights  of  the  plain- 
tiff or  his  grantors,  but  I  know  of  no  rule  of  law  which  would  consti- 
tute an  illegal  act  of  the  kind  a  transfer  of  the  title. 

As  tlie  case  stands,  it  is  not  necessary  to  pass  upon  the  question  ■ 
whether  there  is  a  distinction  between  the  case  of  alluvion  formed  by 
natural  or  artificial  means.     I  find  no  such  distinction  in  the  books.  • 
If,  by  some  artificial  structure  or  impediment  in  the  stream,  the  cur- 
rent should  be  made  to  impinge  more  strongly  against  one  bank,  caus- 
ing it  imperceptibly  to  wear  away,  and  causing  a  corresponding  accre- 
tion on  the  opposite  bank,  I  am  not  prepared  to  say  that  the  riparian 
j^  "yx  ^  y  owner  would  not  be  entitled  to  the  alluvion  dius  formed,  especially  as 
,  s         against  the  party  who  caused  it. 
y  If  the  accretion  was  formed  under  all  the  other  circumstances  neces- 

sary to  constitute  it  alluvion,  I  can  scarcely  suppose  that  a  person 
could  successfully  resist  die  otherwise  valid  claim  of  the  riparian  own- 
er, by  alleging  his  own  wrong,  by  showing  that  the  accretion  would 
not  have  thus  formed  if  he  had  not  himself  wrongfully  placed  impedi- 
ments in  the  stream.  But  that  question  is  not  before  us.  It  is  enough 
that  this  case  does  not  show  that  the  land  in  question  was  alluvion. 

The  judgment,  therefore,  must  be  affirmed  with  costs.^ 

f  2  "If  portions  of  soil  were  added  to  rcfel  estate  fHreadj'  possessed,  by  gradual 
I  deposition,  through  the  operation  of  natural  causes,  or  by  slow  and  impercepti- 
I  ble  accretion,  the  owner  of  the  land  to  which  the  addition  has  been  made  lias 
Va  perfect  title  to  the  addition.     Upon  no  principle  of  reason  or  justice  should 


Ch.3) 


ACCRETION 


147 


VOLCANIC  OIL  &  GAS  CO.  v.  CHAPLIN. 

(Ontario  High  Court  of  Justice,  1912.    27  Out.  Law  Rep.  34.) 

Action  by  the  Volcanic  Oil  and  Gas  Company,  Tohn  G.  Carr.  and  the 
TTnion  Natural  Gns  Company  of  Canada  Limited  (added  by  order  in 
Chambers),  plaintiffs,  against  Cha£lin_^and^^_Curr^  defendant^,  for  a 
declaration  of  the  plaintiffs'  rightofoMnT^rshipoi  certain  lands,  and 
for  an  injunction  and  damages  in  respect  of  trespasses  alleged  to  have 
been  committed  by  the  defendants  thereon. 

Falconbridge;,  C.  J.  The  plaintiffs  the  Volcanic  Oil  and  Gas  Com- 
pany carry  on  busjnessjn  the  counties  of  Essex  and  Kent  in  tlic  pro- 
duction and  sale  of  petroleum  and  natural  gas ;  the  plaintiff  Carr  is 
a  farmer;  the  defendant  Chaplin  is  described  as  a  wheel  manufac- 
turer ;    the  (defendant  Curry) is  an  oil  and  gas  drilling  operator. 

It-  The  plaintiff  Carr  is  the  owner  and  occupant  of  the  westerly  half 
of  lot  178,  Talbot  road  survey,  in  the  township  of  Romney.  It  was 
granted  by  the  Crown  by  patent  dated  the  29th  January,  1825,  to  Carr's 
predecessor.  The  lands  are  described  in  the  patent  in  manner  follow- 
ing, that  is  to  say:  "All  that  parcel  or  tract  of  land  situate  in  the  town- 
ship of  Romney,  in  the  county  of  Kent,  in  the  western  district  in  our 
said  Province,  containing  by  admeasurement  one  hundred  acres,  be 
the  same  more  or  less,  being  the  south-easterly  part  of  lot  number 
178  on  the  north-westerly  side  of  Talbot  road  west,  in  the  said  town- 
ship, together  with  all  the  woods  and  waters  thereon  lying  and  being, 
under  the  reservations,  limitations,  and  conditions  hereinafter  ex- 
I pressed,  which  said  one  hundred  acres  are  butted  and  bounded  or  may 
'be  otherwise  known  as  follows,  that  is  to  say:  commencing  at  the 
•  north-westerly  side  of  the  said  road  in  the  limit  between  lots  numbers 
177  and  178  at  the  easterly  angle  of  tlie  said  lot  178;    thence  on  a 


he  be  deprived  of  accretions  forced  upon  Mm  hy  the  labor  of  another  Avlthout 
hfs  coTTseut  or  connivance,  and  thus  cut  oft"  from  the  benefits  ot  his  original 
proprietorship.  *  *  '  In  the  case  at  bar,  the  accretions  have  not  been  sud- 
den, but  gradual,  as  we  gather  from  the  testimony.  The  city  of  St.  I^ouis,  to 
preserve  its  harbor,  and  to  prevent  the  channel  from  leaving  the  Missouri 
shore,  threw  rock  into  the  river,  and  the  coal  dykes  were  made  to  afford  ac- 
cess to  boats  engaged  in  carrying  across  the  river.  The  ferry  company  pro- 
tected such  accretions  by  an  expenditure  of  labor  and  money.  The  accretions, 
then,  are  partly  the  result  of  natural  causes  and  structures  and  work  erected  ^ 
and  performed  for  the  good  of  the  public.     Api)ellants  should  not.tbpr<^bY  ^"'^p'      ^yg^ 


/^  /; 


their 


;hts  heretofore  en- 


frontage  on  the  river  and  be  debarred  ot  valuable  ng] 

joyedr' — Ixjvingston  r.  «t.  Clair  CouTny,  tj4  in.  bu,  U4,  tlu,  1(3  Am.  Kep.  516 
(1872)1  affirmed  in  23  Wall.  46,  23  L.  Ed.  59  (1S74) ;  Adams  v.  Frothingham,  3 
Mass.  352,  3  Am.  Dec.  151  (1807) ;  Tatum  v.  St.  Louis,  125  Mo.  M8,  28  S.  W. 
1002  (1894),  ace. 

"Of  course  an  exception  m^^^\  alwnyg  l;^p  mnde  of  cases  where  the  operations 
upon  "the  part3-''sown  land  are  not  only  calculated,  but  cnn  bfTsoewn  lohave 
been  intended,  to  produce  tbls  gradiial  acqufsition  of  the  seashore,  however 
di'fficult  such  proof  ot  intention  may  be."  Attorney-General  v.  Chambers,  4  De 
G.  &  .t.  55,  69  (1S.j9),  per  I^rd  Chelmsford,  L.  C.  See  Revell  v.  People,  177  111. 
468,  52  N.  E.  1052,  43  L.  R.  A.  790,  69  Am.  St.  Rep.  257  (1S9S) ;  Attorney-(ien- 
eral  v.  Holt,  [1915]  A.  C.  599. 


148 


ORIGINAL  TITLES 


(Part  1 


course  about  sixty  degrees  west  along-  the  north-westerly  side  of  the 
said  road  twenty  chains  seventy-one  links  more  or  less  to  the  limit  be- 
tween lots  numbers  178  and  179;  thence  north  forty-five  degrees 
west  sixty  chains  more  or  less  to  the  allowance  for  road  between  the 
townships  of  Romney  and  Tilbury  East;  tlience  east  twenty-nine 
chains  more  or  less  to  tlie  limit  between  lots  numbers  178  and  177; 
thence  south  forty-five  degrees  east  47  chains  more  or  less  to  the  place 
of  beginning." 

The  plaintiffs  claim  that  the  original  Talbot  road,  which  formed  the 
south-westerly  boundary  of  the  lanTls  mcludcd  m  the  above  patent,  ran 
near  the  bank  of  Lake  Erie,  which  at  this  point  is  many  feet  above 
the  beach,  and  rises  perpendicularly  therefrom,  having  a  clay  front 
facing  the  waters  of  the  lake.  The  plaintiffs  further  alle.g^e  that  along 
the  shore  of  Lake  Erie^  in  thnt  Jocality,  the  waters  of  the  lake  have 
been  encroaching  upon  the  lands,  undermining  the  bank,  causmg  it  to 
subside,  and  then  gradually  washing  it  awav :  that,  by  reason  of  this 
encroachment  of  the  lake,  Talbot  road  at  an  early  period  grew  danger-  ' 
ous  and  unsafe  for  public  travel,  until,  about  the  year  1838,  it  was  j 
abandoned  as  a  means  of  public  travel,  and  a  new  road,  which  has  for 
many  years  been  known  as  the  Talbot  road,  was  opened  up  and  dedi- 
cated to  public  travel ;  and  that  this  road  still  continues  to  be  the 
travelled  road  known  as  Talbot  road,  but  the  original  Talbot  road 
across  the  lake  front  has  long  since  been  washed  away  by  the  waters 
n^tlip  Inkp,  nnH  now  those  watcrs  have  advanced  beyond  where  they 
were  at  the  time  of  tlie  original  Talbot  road  survey;  so  that  they  have 
washed  away  the  reserve  left  in  front  of  the  Talbot  road,  also  the 
Talbot  road  itself  and  some  rods  of  the  front  of  the  surveyed  lots; 
so  that  now  so  much  of  the  lands  patented  to  Carr's  predecessor,  and 
now  owned  bv  him,  as  are  now  above  the  waters  of  Lake  Erie,  border 
onthe  waters  of  the  Inke,  and  nnt  on  the  original  Talbot  road. 

"The  above  statements  are  denied  by  the  defendants,  but  1  find  them 
o  have  been  proved,  as  I  shall  hereinafter  state. 

On  or  about  the  4th  July,  1908,  the  plaintiff  Carr  executed  and  de- 
livered to  the  plaintiffs  the  Volcanic  company  a  grant  and  demise  of 
the  exclusive  right  to  search  for,  produce,  and  dispose  of  petrolcu m 
and  natural  gas  in,  under,  and  upon  the  said  lands,  together  witliall 
rights  and  privileges  necessary  therefor,  etc. 

By  instrument  under  the  Great  Seal  of  the  Province  of  Ontario, 
dated  the  1st  August,  1911,  known  as  Crown  lease  number  1836,  the 
Government  of  the  Province  demised  and  leased  unto  the  defendant 
Chaplin,  his  heirs,  executors,  etc.,  the  whole  of  "Sat  parcel  or  tract 
o f^land  under  the  waters  of  Lake  Erie  in  front  o f  this  lot,  amongst 
otliers  (the  particular  description  of  which  is  set  out  in  paragraph  5 
of  the  statement  of  defence  of  Curry). 

About  the  month  of  September  1911,  the  defendant  Chaph'n  mnHp 
a  verbal  contract  with  the  defendant  Gurrv.for  putting  down  a  wpII 
ior  the  productionof  petroleum  and  natural  ^as  in  and  upon  the  lands 


Ch.  3)  ACCRETION  149 

SO  demised  by  the  Crown  to  Chaplin;  and  Curry,  actincr  under  such 
contract,  entered  upon  what  the  plaintiff  Carr  claims  to  be  his  land, 
with  men  and  teams,  and  constructed  a  derrick  and  engine-house,  etc. 

The  plaintiffs,  claiming  that  this  entry  was  wholly  unlawful,  made 
objection  thereto;  and,  on  the~defendants  persistmg  in  their  opera- 
tions, the  plaintiffs  obtained  an  injunction  from  the  local  Judge,  which  ^ 
injunction  was  continued  until  the  trial.  The  plaintiffs  now  ask:  (1)  ^tS^^JT/*^  < 
That  the  injunction  be  made  perpetuaj;  (2)  a  declaration  of  their 
rights  as  to  the  ownership  of  the  land,  and  as  to  riparian  rights ;  and 
(3)  damages. 

The  defendants  claim  that,  if  the  waters  of  the  lake  have  washedC^^^^^^  C^ 
away  the  bank  and  encroached  in  and  upon  lot  178  the  lands  up  to         » 
the  foot  of  the  high  bank  before-mentioned  became  the  property  of 
the  Crown,  and  that  the  south-westerly  external  boundaries  of  the  lot 
shifted  as  the  waters  of  the  lake  encroached  thereon,  giving  full  right 
to  the  Crown  to  enter  into  the  Crown  lease  before-mentioned. 

The  point  involved  is  extremely  interesting,  and  is  one  which,  if  I 
correctly  apprehend  the  English  and  Canadian  cases,  has  never  yet 
been  expressly  decided,  either  in  the  old  country  or  here. 

The  surveyors  who  were  called  all  agree  that,  by  reason  of  the 
original  survey  having  been  made  so  long  ago,  and  of  the  disappear- 
ance of  original  monuments,  etc.,  they  could  not  now  lay  out  upon 
the  land  and  water,  as  tliey  now  exist,  the  old  Talbot  road.  Numer- 
ous witnesses  were  called  who  remembered  that  road  and  could  speak 
of  its  boundaries,  and  of  the  erosion  of  the  beach  causing  the  road 
to  be  carried  away  north  to  its  present  position — many  rods  north  of 
its  original  situs.  The  evidence  is  overwhelming^  (I  disregard  the 
curious  evidence  of  Samuel  Cooper),  and  I  find  it  to  be  the  fact  that 
the  locus  now  in^  controversy  is  part  of  the  lot  178  north  of  the  old 
T^bot  road".  ^ 

Having  come  to  this  conclusion,  it  follows  that,  if  the  plaintiffs' 
contention  in  law  is  well  founded,  it  is  quite  -immaterial  whether  or 
not^  the  construction  of  the  derrick  is  entirely  in  the  water,  or  partly 
in  the  water  and  partly  on  the  beach — the  fact  being  that  it  is  on  Carr's 
prq2?rty. 

In  Gould  on  Waters  (3d  Ed.)  para.  155,  pp.  306  to  310,  inclusive, 
after  stating  the  general  rule  that  "land  formed  by  alluvion,  or  the 
gradual  and  imperceptible  accretion  from  the  water,  and  land  gained _ 
by  j-elictiop.  or  the  gradual  and  imperceptible  recession  of  the  water, 
belong  to  the  owner  of  the  contiguous  land  to  which  the  addition  is 
made,"  and  that  "conversely  land  gradually  encroached  upon  bv  nav;^  _^u>- 
igable  waters  _ceases   to_^elpng  to  the  former  owner."   quoting  the^^^\!f 

rnaximJ'Oui  sentit  onus  debet  sentire  commodum,"  the  author  pro-  -^...^ 

ceeds  (p.  309) ;    "But  when  the  line  along  the  shore  is  clearly  and  |         y^w-.^ 
rigidly  fixed  by  a_^deed  or  survey,  it  will  not,  it  seems,  afterwards  "be         *^ 
changed  because  of  accretions,  although,  as  a  general  rule,  the  right 
to  alluvions  passes  as  a  riparian  right." 


^-^ 


150  ORIGINAL  TITLES  (Part  1 

In  Saulet  v.  Shepherd  (1866)  4  Wall.  (U.  S.)  502,  18  L.  Ed.  442,  it 
was  held  that  the  right  to  alluvion  depends  upon  the  fact  of  contigu- 
ity of  the  estate  to  the  river — where  the  accretion  is  made  before  a 
strip  of  land  bordering  on  a  river,  the  accretion  belongs  to  it  and  not 
to  the  larger  parcel  behind  it  and  from  which  the  strip  when  sold  was 
separated;  citing  at  length  the  judgment  in  a  case  of  Gravier  v.  City 
of  New  Orleans,  which  is  in  some  Httle  known  report  not  to  be  found 
in  our  library  at  Osgoode  Hall. 

In  Chapman  v.  Hoskins  (1851)  2  Md.  Ch.  485,  tlie  general  rule  is 

stated  as  follows  (paragraph  2,  head-note) :  "Owners  of  lands  border- 

(  ing  upon  navigable  waters  are,  as  riparian  proprietors,  entitled  to  any 

\  increase  of  the  soil  which  may  result  from  the  gradual  recession  of 

yhe  waters  from  the  shore,  or  from  accretion  by  alluvion,  or  from  any 

/other  cause;   and  this  is  regarded  as  the  equivalent  for  the  loss  they 

(niay  sustain  from  the  breaking  in,  or  encroachment  of  the  waters  upon 

their  lands^ 

Now,  in  the  case  in  hand,  the  plaintiffs  say  that  they  could  gain  noth- 
ing by.  accretion,  by  alluvion,  or  other  cause ;  and,  consequently,  they 
should  not  lose  by  encroachment  of  the  water  upon  their  land,  to 
which  fixed  termini  were  assigned  by  the  grant  from  the  Crown.  This 
doctrine  seems  to  be  well  supported  by  decisions  of  Courts  which  are 
not  binding  upon  me,  but  which  command  my  respect,  and  which  would 
seem  to  be  accurately  founded  upon  basic  principles.  — - — s 

In  Smith  v.  St.  Louis  Public  Schools  (1860),  30  Mo.  290,  the  prin-' 
ciple  is  very  clearly  stated :  "The  principle  upon  which  the  right  to 
alluvion  is  placed  by  the  civil  law — which  is  essentially  the  same  in 
this  respect  as  the  Spanish  and  French  law,  and  also  the  English  com- 
mon law — is,  that  he  who  bears  the  burdens  of  an  acquisition  is  enti- 
tled to  its  incidental  advantages,;  consequently,  that  the  proprietor  of 
a  field  bounded  by  a  river,  being  exposed  to  the  danger  of  loss  from 
its  floods^  is  entitled  to  the  increment  which  from  the  same  cause 
maybearmexeil„tP.J.t-^  This  rule  is  inapplicable  to  what  are  termed 
hmited  helds,  agri  limitati ;  that  is,  such  as  have  a  definite  fixed  bound- 
ary other  than  the  river,  such  as  the  streets  of  a  town  or  city."  The 
reference  in  the  judgment  to  the  English  common  law  is  not  quite 
so  positive  as  the  head-note  states  it.  The  Judge  (Napton)  in  the 
course  of  a  very  learned  opinion  says  (30  Mo.  300) :  "It  will  be  found, 
indeed,  that  upon  this  subject  the  Roman  law,  and  the  French  and 
Spanish  law  which  sprung  from  it,  are  essentially  alike,  if  we  except 
mere  provincial  modifications ;  and  it  is  believed  that  the  English  com- 
mon law  does  not  materially  vary  from  them.  This  uniformity  neces- 
sarily results  from  the  fact  that  the  foundation  of  the  doctrine  is  laid 
in  natural  equity."  In  saying  this  he  may  have  had  in  his  mind  the 
language  of  Blackstone,  to  be  now  found  in  book  2  (Lewis'  Ed.)  pp. 
261-2,  although  he  does  not  cite  him.  There  are  some  earlier  English 
authorities  to  which  I  shall  refer  later. 

Then  there  is  a  case  of  Bristol  v.  County  of  Carroll  (1880)  95  111. 


Ch.  3)  ACCRETION  151 

84  (para.  3  of  head-note) :    "3.  To  entitle  a  party  to  claim  the,  rig^ht  -/r 

to  an  allu\dal_forniation,  or  land  gained  from  a  lake  hv  alluvium,  f}^e. 
lake  must  form  a  boundary  of  his  land.     If^ny_]andjiesj3etween  his    ^  *   — 

boundary  lineand_the  lake._he_cannot_clairn  such  formation."  \^  "'^^'^^ 

TnDoe  dem.  Commissioners  of  BeauTort  v.  Duncan  (1853)  46  N.  C.  ^-'■**''^* 
234,  at  page  238,  Battle,  J.,  says :  "Were  the  allegations  supported  by 
the  proof,  an  interesting  question  would  arise,  whether  the  doctrine 
of  alluvion  applies  to  any  case  where  a  water  boundary  is  not  called 
for,  though  the  course  and  distance,  called  for,  may  have  been  co- 
terminous with  it?  We -do  not  feel  at  liberty  to  decide  the  question, 
because  we  are  clearly  of  opinion  that  the  evidence  given  on  the  part 
of  the  defendant  does  not  raise  it." 

Cook  V.  McClure  (1874)  58  N.  Y.  437,  17  Am.  Rep.  270,  is  a  judg- 
ment of  the  Court  of  AjDpeals  of  tlie  State  of  New  York.  The  head- 
note  is  as  follows :  ilt  seems,  the  rule  that,  where  a  boundary  line 
is  a  stream  of  water,  imperceptible  accretions  to  the  soil,  resulting;  from 
naturaLcauses.  Erelong  to  the  riparian  owner,  applies  as  well  where  Ihe  | 
boundary  is  upon  an  artihcial  pond  as  upon  a  running  stream:.  In 
an  action  of  ejectment,  plaintiff  claimed  under  a  deed  conveying  prem- 
ises upon  which  was  a  mill  and  pond.  The  boundary  line  along  the 
pond  commenced  at  'a  stake  near  the  high-water  mark  of  the  pond,' 
running  thence  'along  the  high-water  mark  of  said  pond,  to  tlie  up- 
per end  of  said  pond.'  Held,  that  the  line  thus  given  was  a  fixed 
and  permanent  one,  and  did  not  follow  the  changes  in  the  high-water 
mark  of  the  pond ;  and  that  defendant,  who  owned  the  bank  bounded 
by  said  line,  could  not  claim  any  accretions  or  land  left  dry  in  conse- 
quence of  the  water  of  the  pond  receding,  although  the  gradual  and 
imperceptible  result  of  natural  causes." 

In  The  Schools  v.  Risley,  10  Wall.  (U.  S.)  91,  19  L.  Ed.  850,  the 
decision  was  as  follows:    "A  street  or  tow-path  or  passway  or  other 
open  space  permanently  established  for  public  use  between  the  river 
and  the  most  eastern  row  of  blocks  in  the  'lorn^gT  town  of  St.  Louis, 
wjicn  It  was  first  laid  out,  or  established^  or  founded,  would  prevent 
tlje  owners  of  such  lots  or  blocks   from  being  riparian  proprietors 
of  the  land  between  such  lots  or  blocks  and  the  river.    But  this  would 
not  be  true  of  a  passage-way  or  tow-path  kept  up  at  the  risk  and  QjUaU^^  ^ 
charge  of  the  proprietors  of  the  lots,  and   following  the  changes  of     A/^^J^n!X^ 
the  river  as  it  receded  or  encroached,  and  if  the  inclosure  of  the  pro-     ^ 
prietor  was  advanced  or  set  in  with  such  recession  or  encroachment." 

In  re  Hull  and  Selby  Railway  (1839)  5  M.  &  W.  327,  the  general 
law  as  to  gradual  accretion  or  recession  is  stated.  Alderson,  B.,  says 
(p.  333) :  "The  principle  laid  down  by  Lord  Hale,  that  the  party  who 
suffers  the  loss  shall  be  entitled  also  to  the  benefit,  governs  and~3e- 
cidesme  question.  That  which  cannot  be  perceived  in  its  progress  is 
taken  to  be  aTTT^it  never  had  existed  at  all."  tt' 

See  also  Giraud's  Lessee  y.  Hughes  (1829)  1  Gill  &  J.  (14  C.  A.  Md.) 
249. 


152 


ORIGINAL  TITLES 


(Part  1 


/  The  defendants'  counsel,  in  tlie  course  of  a  very  elaborate  and  care- 
I  ful  argument,  cited  numerous  authorities  in  support  of  the  view  that 
\  the  plaintiff  Carr  had  lost  the  land  by  the  encroachment  of  the  water. 
J  i  do  not  cite  all  of  these,  because  they  are  set  out  at  large  in  the  ex- 
/  tended  report  of  the  argument ;  but  I  do  not  think  that  there  is  any 
case  in  which  it  has  been  expressly  held  that  a  person  in  the  position 
of  this  individual  plaintiff  loses  his  property  because  of  the  gradual 
encroacliment  of  the  w^ater  past  the  land  in  front  of  the  road,  past 
the  road^and  past  the  fixed  boundary  of  the  p]^intiff<^'Jnnd■  He  could 
not  have  gained  an  inch  of  land  by  accretion,  even  if  tlie  lake  had  re- 
ceded for  a  mile;  and,  therefore,  it  seems  that  the  fundamental  doc- 
trine of  mutualitv.  formulated  in  the  civil  law  and  adopted  into  the 
jurisprudence  of  many  countries,  cannot  apply  to  him. 

Perhaps  the  strongest  English  case  cited  by  the  defendants'  counsel 
was  Foster  v.  Wright  (1878)  4  C.  P.  D.  438:  "The  plaintiff  was  lord 
of  a  manor  held  under  grants  giving  him  the  right  of  fishery  in  all 
the  waters  of  the  manor,  and,  consequently,  in  a  river  running  through 
it.  Some  manor  land  on  one  side  of,  and  near  but  not  adjoining  the 
river,  was  enfranchised  and  became  the  property  of  the  defendant. 
The  river,  which  tlien  ran  wholly  within  lands  belonging  to  the  plain- 
tiff, afterwards  wore  away  its  bank,  and  by  gradual  progress,  not  visi- 
ble, but  periodically  ascertained  during  twelve  years,  approached  and 
eventually  encroached  upon  the  defendant's  land,  until  a  strip  of  it 
became  part  of  the  river  bed.  The  extent  of  the  encroachment  could 
be  defined.  The  defendant  went  upon  the  strip  and  fished  there. 
Held,  that  an  action  of  trespass  against  him  for  so  doing  could  be 
maintained  by  the  plaintiff,  who  had  an  exclusive  right  of  fishery 
which  extended  over  the  whole  bed  of  the  river  notwithstanding  the 
gradual  deviation  of  the  stream  on  to  the  defendant's  land." 

That  case  goes  a  long  way  in  support  of  the  defendants'  contention. 
But  Lord  Coleridge,  C.  J.,  concurs  only  in  the  result  arrived  at  by 
Lindley,  J.  He  thinks  the  safer  ground  appears  to  be  "that  the  lan- 
guage (of  the  grant)  conveys  *  *  ♦  a  right  to  take  fish,  and  to 
take,  it  irrespective  of  the  ownership  of  the  soil  over  which  the  water 
flows  and  the  fish  swim.  The  words  appear  to  me  to  be  apt  to  create 
a  several  fishery,  i.  e.,  as  I  understand  the  phrase,  a  right  to  take 
fish  in  alieno  solo,  and  to  exclude  the  owner  of  the  soil  from  the  right 
of  taking  fish  himself ;  and  such  a  fishery  I  think  would  follow  the 
slow  and  gradual  changes  of  a  river,  such  as  the  changes  of  the  Lune 
in  this  case  are  proved  or  admitted  to  have  been." 

There  is  a  reference  in  the  argument,  and  in  the  judgment  in  this 
case,  to  some  of  tlie  old  authorities;  for  example:  Britton,  book  2, 
ch.  2,  sec.  7,  Nichol's  translation,  p.  218:  "But  if  the  increase  has 
been  so  gradual,  that  no  one  could  discover  or  see  it,  and  has  been 
added  by  length  of  time,  as  in  a  course  of  many  years,  and  not  in 
one  day  or  in  one  year,  and  the  channel  and  course  of  the  water  is 
itself  moving  towards  tlie  loser,  in  that  case  such  addition  remains  the 


.to      \ 
this    /    ^ 


Ch.  3)  ACCRETION  153 

purchase  and  the  fee  and  freehold  of  the  purchaser,  if  certain  bounds  '^^ 
are  not  found." 

Lindley,  J.,  seems  to  think  that  in  In  re  Hull  and  Selby  Railway 
which  I  have  already  referred,  the  Court  declined  to  recognise 
principle. 

As  against  the  authorities  in  the  United  States  which  I  have  cited, 
there  is  a  very  strong  case  of  Widdecombe  v.  Chiles  (1903)  173  Mo. 
195,  73  S.  W.  444,  61  L.  R.  A.  309,  96  Am.  St.  Rep.  507,  a  judgment 
of  the  Supreme  Court  of  Missouri.  The  note  is  as  follows:  "De- 
fendant was  the  owner  of  the  south  half  of  a  section  of  land  between 
which  and  the  river  bed  there  was  originally  a  strip  of  8  acres,  forming 
the  fractional  north  half,  which  had  not  been  patented.  The  river 
changed  its  bed  until  it  had  washed  away  the  8-acre  strip,  and  flowed 
through  defendant's  land,  when  it  began  to  rebuild  to  defendant's  land 
all  that  it  had  washed  away,  and  about  200  acres  additional.  Plaintiff 
then  received  a  patent  for  the  fractional  north  half  of  the  section  as 
described  by  the  original  survey.  Held,  that,  the  accretion  being  to 
defendant's  land,  plaintiff  took  no  title  by  his  patent."  And  Valliant, 
J.,  says  WTJio.  at  page  204,  73  S.  W.  446,  61  L.  R.  A.  309,  96 
Am.  St.  Rep.  507) :  "This  Court  has  not  said  in  either  of  those  cases, 
and  we  doubt  if  any  Court  has  ever  said,  that  land  acquired  under 
a  deed  giving  metes  and  bounds  which  do  not  reach  the  river — which 
in  fact  did  not  reach  the  river  when  the  deed  was  made — does  not 
become  riparian  when  the  intervening  land  is  washed  away,  and  the 
river  in  fact  becomes  a  boundary."  ^ 

In  considering  authorities  which  are  not  binding  upon  me,  and  when 
I  have  to  decide  '^ipon  reason  untrammelled  by  authority"  (per  Wern- 
er, J.,  in  Linehan  v.  Nelson^  il9l0]~r97' NV  Y.  482,  at  page  485,  90 
X.  E.  1114,  35  L.  R.  A.  [N.  S.]  1119,  18  Ann.  Cas.  831),  J  prefer 
^hosj_Umted_States_  decisions,  which  I  have  earlier  cited.  There  have 
also  been  cited  to  me  authorities  which  it  is  contended  dispose  com- 
pletely of  the  Widdecombe  Case,  viz.,  the  Lopez  Case,  which  is  re- 
ported as  Lopez  v.  Muddun  Mohun  Thakoor  (1870)  13  Moo.  Ind.  App. 
467;  Hursuhai  Singh  v.  Synd  Lootf  Ali  Khan  (1874)  L.  R.  2  Ind. 
App.  28;   and  Theobald's  Law  of  Land,  p.  37. 

It  was  strongly  contended  by  tlie  junior  counsel  for  the  plaintiffs 
that,  apart  from  the  main  question,  and  granting  that  the  erosive  ac- 
tion of  the  lake  has  encroached  upon  the  plaintiff  Carr,  and  that  he 
has  lost  some  of  his  land,  then  at  any  rate  he  only  loses  it  down  to  the 
low  water  mark.  But,  having  regard  to  the  view  that  I  take  about 
the  main  question,  it  is  not  necessary  to  consider  that  argument. 

s  feuker  v.  Canter,  U2  Kan.  363,  63  Pac.  617  (1901) ;  Welles  v.  Bailey,  55  Conn. 
292,  10  Atl.  565,  3  Am,  St.  Rep.  48  (1S87),  ace.  But  see  Gilbert  v.  Eldridge,  47 
-Minn.  210,  40  X.  W.  670,  1:5  L.  li.  .V.  411  (1801) ;  Ocean  City  Ass'n  v.  Slinver,  64 
X.  J.  Law,  550.  40  Atl.  COO.  51  I..  R.  A.  425  (1000)  ;  Hempstead  v.  Lawrence,  70 
Mi.sc.  Rep.  52,  127  N.  Y.  Supp.  040  (1010).  See  also  Cook  v.  McClure,  58  N.  Y. 
-4.37,  17  Am.  Rep.  270  (1874),  where  the  boundary  was  upon  a  millpond. 


54  OKiGiNAL  TITLES  (Part  1 

I  do  not  see  that  the  statute  1  Geo.  V,  ch.  6,  has  any  application  to 
this  case;  nor  do  I  see  that  the  Attorney-General  ought  to  bring  the 
action  or  is  a  necessary  party — the  plaintiffs  being  concerned  only  with 
the  trespass  upon  their  lands,  and  not  with  any  supposed  public  right. 

The  good  faith,  or  the  opposite  of  the  defendants,  in  making  the 
trespass,  is  a  matter  of  no  consequence  in  the  disposal  of  the  action. 

I  find,  therefore,  that  there  has  been  a  tre.=;pn.s.s  by  \]^p  defpnfLTnts 

upon  the  piaintift's'  land,  and  that  they  are  entitled  to  have  the  injun c - 

tion  herem  made  perpetual,  with  full  costs  on  the  High  Court  scale 

and  $10  damages.* 

SUPPLEMENTARY  NOTE 

Eminent  Domain.— A'c/urr  of  Ti7?c.--Tbe  title  acquired  n.s  a  result  of  eiiiineut 
d oiiiaiii  inuceediiiyj  is  an  original  or  new  title,  as  distiuiriiislicd  fiotu  a  dcri va - 
tive^title  or  one  L)ased  upon  nrivity.  It  is  said  in  Weeks  v.  (Jraee.  191  Mass. 
2"JUr.S0  N.  !•:.  liliO,  I)  L.  K.  A.  (N.  S.)  lO'.rJ,  10  Ann.  Cas.  1077  (10(17)  that:  "The 
power  when  exerei.sed  acts  npon  the  land  itself,  not  upon  the  title,  or  the  sum 
of  titles,  if  tliere  are  diversified  interests.  Upon  ai)iiropriation  all  inconsistent 
proprietary  rijjhts  are  divested,  and  not  only  privies,  Ijut  strangers  are  cou- 
cluded.  *  •  ♦  Thereafter  whoever  may  have  heen  the  owner,  or  whatever 
may  have  been  the  quality  of  his  estate,  he  is  entitled  to  full  compensation 
according  to  his  interest,  and  the  extent  of  the  taking,  hut  the  paramount  right 
is  in  the  puldic,  not  as  claiming  under  him  by  a  statutory  grant,  but  by  an 
independent  title."  See,  also,  Emery  v.  Boston  Terminal  Co.,  17b  Mass.' 171', 
.09  N.  E.  7tj;J,  SO  Am.  St.  Kep.  47:;  (1901);  Todd  v.  Austin,  .34  Conn.  7S  (1S07). 
Couas^uently  eviction  under  enanent  domain  proceedings  does  unt  constitute 
a  brea'li  oi  WVtMltints  iul'  lllh',  Ulullier  sheMal  or  geinTal7~~Ake  v.  Mason.  101 
Pa.  17  (l.ss-'):  Dobbins  v.  Hrown,  12  Pa.  7.j  (ls4I)i;  Folt.s  v.  Huntley,  7  Wend. 
(N.  Y.)  210  (1&31) ;  Stevenson  v.  Loebr,  57  111.  509,  11  Am.  Rep.  36  (1S71) ;  Kuhn 
V.  Ereeman,  15  Kan.  420  (1875). 

E.rtcnt  of  the  Interest  Ac(/iiired. — In  the  absence  of  constitutional  restric- 
tions it  rests  within  the  discretion  of  the  l.eirisliiture  to  determine  wliat  interest 
or  estate  shall  vest,  .^ee  bnscoii  v.  Aew  Haven,  ib  C6nn.  92,  .^2  Atl.  CIS  (1V102) ; 
Georgia  (Jranite  K.  R.  Co.  v.  Venable,  129  (ia.  .".41,  OS  S.  E.  804  (19U7);  Ding- 
ley  V.  Boston.  100  Mass.  544  (ISUvS)  ;  Sweet  v.  P.utTalo,  N.  Y.  &  Phila.  Rv.  Co., 
79  N.  Y.  29;J  (1S79);  Eairchild  v.  St.  Paul.  40  Minn.  540.  49  N.  W.  ;J25  (1891). 
W hen  the  extent  of  the  interest  is  not  si)eci[ied.  oidv  such  an  estate  or  inter- 
est will  vest  as  i.c!  necessary  to  iieriiiit  the  dccumi.lislimeiit  of  tlie  purpose  for 
M-liich  the  land  is  apt)roiii-i:ite(l.  Clark  v.  Worcester  T'.".  Mims:  ""I!  /IK'i'K> ; 
N'ewtun  v.  Newton,  1S8  Mass.  226.  74  N.  E.  .340  (1905) ;  Smith  Canal  Co.  v.  Colo- 
rado Ice  &  Storage  Co.,  34  Colo.  485.  82  Pac.  940.  3  L.  R.  A.  (N.  S.)  114S  (1905). 
See,  also,  lleyneman  v.  Blake,  19  Cal.  579  (1802) ;  Quick  v.  Tavlor,  113  Ind. 
540.  10  N.  E.  ,588  (188S).  But  see  Driscoll  v.  New  Haven,  75  Conn.  92.  52  Atl. 
618  (1902).  Where  the  fee  vests,  as  to  whether  it  is  an  absolute  fee.  see  Halde- 
man  v.  Penn  R.  Co.,  50  Pa.  425  (1805) ;  Ma  lone  v.  Toledo.  28  Ohio  St.  043  (1870) ; 
Nelson  v.  Fleming,  56  Ind.  310  (1877) ;  Kellogg  v.  Malin,  50  Mo.  490,  11  Am. 
Kep.  420  (1872) :  People  v.  White,  11  Barb.  (N.  Y.)  26  (1851).  Where  less  than 
the  fee  vests,  the  reversion  remains  in  the  original  owner,  his  heirs  and  as- 
signs. Chambers  v.  Great  Northern  Power  Co.,  100  Minn.  214,  110  N.  W.  1128 
(1907);  McCombs  v.  Stewart.  40  Ohio  St  047  (1SS4) ;  Lazarus  v.  Morris.  212 
Pa.  128,  61  Atl.  815  (1905).  A^s  to  the  rights  of  the  parties  where  only  an_ease- 
ment  is  acquired,  see  Blake  v.  Rich,  34  N.  II.  282  (1S50) ;  Upper  Ten  Mile 
Plank  Road  Co.  v.  Braden,  172  Pa.  400,  33  Atl.  562,  51  Am.  St.  Rep.  759  (1896). 
When  Title  Passes. — It  is  generally  held  that  title  vests  O'dy  upon  payment 
of  compensation.  City  or  Chicago  V. 'Birbian,  80  in.  4si  (1875) ;  Levering  v. 
^Mladelphia  G.  &  N.  K.  Co.,  8  Watts  &  S.  (Pa.)  459  (1844) ;  Kennedy  v.  Indian- 
apolis, 103  U.  S.  599,  26  L.  Ed.  550  (1S80) ;  New  Orleans  &  S.  R.  R.  Co.  v.  Jones, 

4  Apportionment  of  Accretions. — See  case  note  to  Northern  Pine  Land  Co. 
V.  Bigelow,  84  Wis.  157.  54  N.  W.  496  (1893),  in  21  L.  R.  A.  776,  et  seq. ;  also 
Angell  on  Water  Courses  (4th  Ed.)  47  et  seq. 


Ch.  3)  ACCRETION  155 

68  Ala.  48  (1880) ;  Cushman  v.  Smith,  34  Me.  247  (1852) ;  Stacey  v.  Vermont 
Cent.  R.  Co.,  27  Vt.  89  (1854). 

In  the  absence  of  constitution,-!!  rpsfrminti;  |Jip  legislature  may  in  its  discre- 
tionJI^ermine  when  title  shall  rest.  .Sweet  v.  Rechel.  159  U.  ».  oJiO,  1(3  tjup. 
Cfr43,  40  L.  Ed.  188  (lS9o).  See,  also,  City  of  Pittsburg  v.  Scott,  1  Pa.  309 
(1845). 

No  extended  discussion  of  this  question  will  be  attempted  as  each  case  is 
very  larj:ely  dependent  UE)on  the  words  of  a  particular  statute  or  the  state  con- 
stitution. 

Tax  Titles. — The  nature  and  extent  of  the  title  acouirpd  hy  g  piir,^i>pgar  <^f 
a  tax  sale  depends  largely  upon  the  terms  of  the  particular  statute  under 
which  the  taxes  are  kn-iedf  Where  the  tax  Is  made  a  charge  directly  uiion  the 
land  itself,  and  the  proc-eedings  for  its  collection  are  strictly  ii^Ji;iii>  ^^^*^  ^'^^^ 
deed  (j)rovided  all  the  proceedings  have  been  regular)  will  ha  vetne  effect  of 
destro,viug  all  t)rlor  interests  in  the  estate,  whether  vested  or  coutinL'eiit,  f>y- 
ecuted  or  executory,  and  whether  in  noss^^-ssii^)ii.  i-t'Vi-r><ion,  or  reni.-iiiider.  Such 
a  title  is  in  no  .seii.se  derivative.  I^ucas  v.  I'urdy,  1411  Iowa,  .'JuU,  120  N.  W, 
1063,  24  L.  R.  A.  (N.  S.)  1294,  19  Ann.  Cas.  974  (19U9) ;  I'.rown  v.  Austin.  41  VL 
2(52  (18(iS);  Ivahle  v.  Nisley,  74  Ohio  St.  328,  7S  N.  E.  52U  (190<;).  See,  also, 
Osceola  I>and  Co.  v.  Chicago  Mill  &  Lumber  Co.,  84  Ark.  1.  1(J3  S.  W.  (!09  (1907); 
Atkins  V.  Hinman,  7  111.  (2  Cilnian)  4:}7  (1845i;  McFadden  v.  Goff,  32  Kan. 
415,  4  I'ac.  841  (1884);  McMtihon  v.  Crean,  109  .Md.  (;52,  71  Atl.  995  (19U9) ; 
Langley  v.  Chai)in,  i:{4  Mass.  82  (iss;5);  Cole  v.  Van  Ostnind,  131  Wis.  454,  110 
N.  W.  884  (1997);  Hefner  v.  Northwestern  Mnt.  Life  Ins.  Co.,  12:{  U.  S.  747, 
8  Sup.  VL  'Ml,  31  L.  Ed.  309  (1S.S7).  Where,  however,  the  taxes  when  levied 
constitute  a  debt  due  from  the  owner  wlikh  may  Lie  collected  in  an  action  in 
persuLia nT;  and  wliere  the  law  in  terms  or  uinin  a  fair  construction  permits 
a  saleol'  the  land  oidy  when  all  other  remedies  have  been  exliaiiste(l,  then 
the  title  ac(|uircd  is  derivative,  and  includes  only  the  Interest  of  tlie  person 
taxeij: — See  .MeTTTTiaid  v.  Hannah  (C.  C.)  "1  l-'eil.  7:>.  (1M)2);  dross  v.  Taylor,  81 
CaTsO.  G  S.  E.  179  (IS'^S);  (wites  v.  Lawson,  .32  (Jrat.  (Va.)  12  (1879);  Coney 
V.  Cummings,  12  I.a.  Ann.  74S  (1857);  Hunn  v.  Winston.  31  Miss.  1.35  (18.50); 
Dyer  v.  liranch  Hank  at  Mobile,  14  Ala.  (522  (1S4.S) ;  Ex  parte  Macay.  84  N. 
C.  03  (1881):  Jlisper  County  v.  Wadlow,  82  Mo.  172  (1SS4);  Ferguson  v.  Quinn, 
97  Tenn.  4fi.  .3(!  S.  W.  57li,  .33  L.  K.  A.  (iSS  (l.SDti);  Clenn  v.  West.  lOO  \a.  :;56, 
5U  S.  E.  14;?  (19071.  See,  also.  Irwin  v.  Hank  of  I  iiited  State.s,  I  I'a.  349  (1845), 
as  to  situation  where  .separate  interests  are  se|>arutely  a.ssessed. 

See  on  the  subject  generally  Black  on  Tax  Titles. 


PART  II 
DERIVATIVE  TITLES 


CHAPTER  I 
MODE  OF  CONVEYANCE* 


SECTION  1.— AT  COMMON  LAW 
1.  Feoffment 


LITTLETON'S  TENURES. 

But  of  feoffments  made  in  the  country,  or  gifts  in  tail,  or  lease 
for  term  of  life;  in  such  cases  where  a  freehold  shall  pass,  if  it  be  by 
deed  or  without  deed,  it  behoveth  to  have  livery  of  seisin. 

Section  59. 


COKE  UPON  LITTLETON. 

"Livery  of  sefsin."  Traditio,  or  deliberatio  seisinre,  is  a  solemnity, 
that  the  law  recjuireth  for  the  passing  of  a  freehold  of  lands  or  tene- 
rnents  by  delivery  of  seisin  thereof.  Intervenire  debet  solennitas  in 
mutatione  liberi  tenementi,  ne  contingat  donationem  deficere  pro  de- 
fectu  probationis. 

And  there  be  two  kinds  of  livery  of  seisin,  viz.  a  livery  in  deed, 
and  a  livery  in  law.  A  livery  in  deed  is  when  the  feoffor  taketh  the 
ring  of  the  door,  or  turf  or  twig  ot  tlie  land,  and  dehvereth  the  same 
uj)on  the  land  to  the  feoffee  in  name  of  seisin  of  the  land,  &c.,  per 
hostium  et  per  haspam  et  annulum  vel  per  fustem  vel  baculum, 
&c.     '''     *     * 

A  livery  in  law  is,  when  the  feoffor  saith  to  the  feoffee,  being  in 
the  view  ot  the  house  or  land,  (I  ^ive  ynn  ynndpr  l^nH  to  you  and 
your  heirs,  and  go  enter  into  the  same,  and  take  possession  thereof 
accordino-ly)  and  the  feoffee  doth  accordingly  in  the  life  of  the  feoff- 
or enter,  this  is  a  good  feoffment,  for  signatio  pro  traditione  habetur. 
And  herewith  agreeth  Bracton :  Item  dici  poterit  et  assignari,  quando 
res  vendita  vel  donata  sit  in  conspectu,  quam  venditor  et  donator  dicit 

1  For  the  background  of  the  subject-matter  of  this  chapter,  see  2  Pollock 
&  Maitland,  Hist.  Eng.  Law,  SO-lOti. 

(156) 


Ch.  ])  MODE  OP  CONVEYANCE  15T 

se  tnidere :  and  in  another  place  he  saith,  in  seisina  per  effectiim  et  per 
aspectum.  But  if  either  feoffor  or  the  feoffee  die  before  entry  Ihe 
hvery  is  void.  And  Hvery  within  the  view  is  good  where  there  is  no 
deed  of  feoffment.  And  such  a  Hvery  is  good  albeit  the  land  lie  in  an- 
other county.  A  man  may  have  an  inheritance  in  an  upper  chamber, 
though  the  lower  buildings  and  soil  be  in  another  and  seeing  it  is  an 
inheritance  corporeal  it  shall  pass  by  livery. 
4Sa7~B: 


STATUTE  OF  FRAUDS. 

For  prevention  of  many  fraudulent  practices,  which  are  commonly 
endeavored  to  be  upheld  by  perjury  and  subornation  of  perjury;    (2) 
be  it  enacted  by  the  King's  most  excellent  majesty,  by  and  with  the 
advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and  the  Com- 
mons, in  this  present  Parliament  assembled,  and  by  the  authority  of  JJ    \h 
the  same,  That  from  and  ajter  the  four  and  twentieth  day  of  June.  Ouv*.^  AT ' 
which  shall  be  in  TITe  year  oTour  Lord  one  thousand  six  hundred  S£v-    Q 
pntv  seven,  all  leases,  estates,  interests  of  freeliold.  or  tc^m7s^of^j>:eaTS, 
or  any  unccrUiurii^^                                                                          nKiiiors, 
lands.^encmentsorhereditanients,   made   or   created    by   livery   and 
seisin  only,  or  by  parol  and  not  nut  in  writing,  and  signed  by  the  par- 
ties so  making  or  crcatin^^  the  same,  or  their  a^!::^cnts  thereunto  lawfully 
authorized   by   writing,   shall  have  the   force  and  effect  of   leases   or 
estates  at  will  only,  and  shall  not  either  in  law  or  equity  be  deemed  or 
taken  to  have  any  other  or  greater  force  or  effect ;    any  consideration 
for  making  nny  such  parol  leases  or  estates,  or  any  former  law  or    ■ 
usage,  to  the  contrary  notwithstandin,c:. 

IL  Except  nevertheless  all  leases  not  exceeding  the  term  of  three 
yejirs  from  the  making  thereof,  whereupon  the  rent  reserved  to  the 
landlord,  during  such  term,  shall  amount  unto  two  third  parts  at  the 
least  of  the  full  improved  value  of  the  thing  demised.  ^  •  ^^^ 

in.  And  moreover,  That  no  leases,  estates,  or  interests  either  of        -  ^ 

freehold',  or  terms  of  years,  or  any  uncertain  interest,  not  being  copy- 
hold or  customary  interest,  of,  in,  to  or  out  of  any  messuages,  manors,  . 
lands,  tenements  or  hereditaments,  shall  at  any  time  after  the  said  four 
and  twentieth  day  of  June  be  assip^ned.  ffrantcd  or  surren(Jereii--un- 
less  it  be  by  deed  or  note  in  writing,  signed  bv  the  party  so  n.swni- 
jn'grgTanting  or  surrendering^  the  same,  or  their  agents  thereunto  law- 
fully authorized  by  writinc^.  or  by  act  and  operation  of  law.' 
^■^Car.  II,  c.  3,  §§  1-3^ 

2  For  a  long  time  prior  to  thfi  Statute  of  Frauds  n  writing;,  thougli  JUJ- 
neces^^iiry  to  an  ettectivo  T(:-('iHmeDt,  was  comnionly  employea  ns  evidence  ot 
Ihb  "Lrausaction  and  im  [rrrTTF:  ^  ~~  „  „.   ,t    ^       ^     er        <.  ^ 

In  184o.  i'ariiamoDt  provided  (St.  8  &  9  Vict.  c.  IOC,  §  3)  that  a  feoffment    ..^^ 
other  than  a  feoffment  made  under  a  custom  by  an  infant,  should  be  deemed  /^ 
void  unless  evidenced  b}-  a  deed. 


158  DERIVATIVE  TITLES  (Part  2 


CHALLIS.  REAL  PROPERTY. 

A  feoffment,  the  most  venerable  of  assurances,  survives  to  thi§^^y, 
but  is  now  little  used.  It, is  believed  that  certain  old  corporate  bodies 
still  retain,  at  all  events  to  some  extent,  the  ancient  practice  of  con- 
veying by  feoffment.  It  is  the  only  assurance  (not  being  matter  of 
record,  as  a  fine  or  recovery)  by  which,  at  the  common  law,  legal  es- 
tates  of  freehold  in  possession  can  be  conveyed  to  a  person  having 
no  subsisting  interest  in  the  land  and  no  privity  with  the  person  making 
the  assurance.  It  consists  simply  and  solely  in  the  livery  of  the  seisin; 
and  some  phrases  in  common  use,  which  seem  to  imply  a  distinction 
between  the  feoffment  and  the  livery,  are  so  far  incorrect. 

By  the  common  law,  any  person  having  actual  possession  (not  nec- 
essarily actual  seisin),  of  lands,  j^ould^  bv  a  feoffment,  give  to  any  per- 
son, other  than  the  person  having  the  next  or  the  immediate  estate  of 
freehold  in  the  lands,  an  immediate  estate  of  freehold,  having  any 
quantum.  If  the  feoffor  was  actually  seised,  and  the  estate  which 
passed  by  the  feoffment  was  no  greater  than  the  estate  of  the  feoffor, 
the  feoffnient  took  effect  rightfully  '^i  but  if  ^he  feoffor  yvas  not  actu- 
ally seised,  or  if  the  estate  which  passed  by  the  feoffment  was  greater 
than  his  estate,  the  feoffment  was  styled  a  tortious  feoffment,  and 
was  said  to  take  effect  by  wrong. 

In  accordance  with  the  maxim  that  no  one  can  qualify  his  own 
wrong,  a  tortious  feoffment  devested  the  whole  fee  simple  out  of  the 
rightful  owner  or  owners.     It  does  not  follow  that  the  tortious  feoff- 
ment was  necessarily  a  feoffment  in  fee  simple ;   and  it  might  in  fact 
•  be  for  a  less  estate.     In  such  a  case,  the  feoffee  took  only  the  less 
estate,  but  the  whole   fee  simple  was  devested  out   of   the   rightful 
owner  or  owners,  and  such  part  of  it  as  was  not  disposed  of  by  the 
feoffment  became  vested  in  the  feoffor  by  way  of  a  tortious  reversion 
upon  the  tortious  particular  estate  created  by  the  feoffment. 
/^    The  tortious  operation  offeoffnjmnts  made  after  1st  October,  1845, 
Vis  prevented  by  8  &  9  Vict.  c.  106,  §  4. 

The  possession  of  a  termor  for  years,  or  tenant  at  will,  or  by  suffer- 
ance, sufficed  to  enable  the  termor,  or  tenant,  to  make  a  tortious  feoft"- 
ment;  and  thus  to  convey  an  immediate  estate  of  freehold  which  ful- 
filled  many  of  the  purposes  of  a  rightful  estate,  though  it  afforded 
no  defence  against  the  title  of  the  rightful  owner.  Upon  the  subject 
generally,  and  especially  upon  the  case  of  Doe  v.  Horde,  1  Burr.  60,  in 
which  Lord  Mansfield,  striving  after  an  unattainable  equity  did  his 
best  to  throw  the  law  into  confusion,  see  Butl.  n.  1  on  Co.  Litt.  330b. 

If  a.  tortious  feoffment  was  made  by  anv  person  other  than  a  tenant 
in  tail  actually  seised,  the  person  rightfully  entitled  (or  any  other  per- 
son acting  in  his  name,  even  though  without  his  assent)  might  at  com- 
:  mon  law  destroy  the  tortious  estate  of  the  feoffee  by  mere  entry  (Co. 
Litt.  258a) ;   but  if  the  feoffee's  heir  had  succeeded  by  inheritance  be- 


Ch.  1)  MODE  OF  CONVEYANCE  ^.J^d^^       J  1^^ 

fore  entry  made,  the  heir's  estate  could  not  be  affected  by  entry,  and 
the  rightful  claimant  was  put  to  his  action.  (Litt./sect.  3S5.)  His 
entry  was  technically  said  to  be  tolled  by  dcsccnt^'^ast.  Entry  was 
tpllcd  by  a  descent  cast  in  fee  tail  (when  the  disseisor  made  a  giit  in 
taij)  as  well  as  in  fee  simple.  (Ibid.  sect.  386.)  But  on  the  extinction 
of  the  entail  by  failure  of  issue,  the  entry  was  revived  against  the 
remainderman  or  reversioner.    (Co.  Litt.  238b.) 

The  3  &  4  Will.  4,  c.  27,  §  39,  eiiacts  that  no  descent  cast  after  3 1st    ->i^ 
December,  1833,  shall  toll  any  right  of  entry^     This  enactment  made    /-<g  ^U<'  ^' ' 
the  learnmg  of  descents  cast,  and  also  of  continual  claim  whereby'^^^       -l^^^*.*^ 
rights  of  entry' might  be  protected  therefrom,  equally  obsolete.  ^'^^/y       x.X^ 

A  feoffment,  made  by  a  tenant  in  tail  actually  seised,  operated  as  a  A^-^r^  » 
d iscontinuance  of  the  estate  tail,  and  devested  all  remainders,  and  th e 
reversion,  expectant  upon  it,  unless  they  were  vested  in  the  kmg. 
Stone  V.  Newman,  Cro.  Car.  427,  at  p.  428.  By  such  discontinuance 
the  persons  entitled  under  the  entail,  and  in  remainder  or  reversion, 
were  barred  of  their  right  of  entry,  and  resi)ectively  put  to  their  ac- 
tion as  the  only  means  to  enforce  their  claims. 

The  learning  relating  to  discontinuance,  though  obsolete  in  respect  ' 
to  the  common  practice,  is  still  sometimes  of  practical  importance.     In 
1884  a  case  was  litigated  in  the  House  of  Lords  in  which  the  validity  ' 

of  a  claim  partly  depended  upon  the  properties  at  Jthe  common  law  of 
a  tortious  fee  simple,  which  had  been  gained  by  a  discontinuance 
effected  in  the  preceding  century,  by  a  feoffment  made  by  the  survivor 
of  two  joint  donees  in  special  tail. 

In  all  cases  where  the  ri^ht  of  entry  was  tolled  or  barred,  the  net- 
ful action  to  recover  tiic  seisin  was  a  real  action.     An  _^ctionofcjcct- 
lent  (eiectione  firma;)  would  not  suffice.    2  Prest.  Abst.  328. 

Tiiere  were  tvvodcgrees  of  remoteness  in  a  right  of  action,  the  first 
being  said  to  be  founded  upon  a  right  of  possession,  and  the  second 
being  styled  a  mere  right ;  and  there  were  two  kinds  of  real  actions 
corresponding  thereto,  possessory  actions,  grounded  upon  writs  styled 
writs  of  entry,  and  djoitural  a^t[onSj  grounded  upon  writs  styled  writs  _ 
of  rigiit.  A  right  of  possession  might  be  turned  to  a  mere  right,  either 
by  suffering  such  a  time  to  elapse  as  would  be  a  bar  to  a  writ  of  entry, 
or  by  suffering  adverse  judgment  by  default  in  an  action  on  such  a 
writ.  (See,  on  this  subject,  Butl.  n.  1  on  Co.  Litt.  239a.)  But  the  dis- 
continuance of  an  estate  tail  by  the  tortious  feoffment  of  the  tenant 
intail  in  possession,  forthwith  turned  the  right  of  the  issue  in  tail_to 
a  mere  right,  without  passing  through  any  mtermediate  stages. 

3d  Ed.  by  Sweet,  pp.  397,  405,  et  seq.^ 


strictly  sppfikins:,  was  properly  used  only  '"'hon  the  convoynnce 

iiiii)le/   AYlien  the  estiue  cre;ited  was  a  t>e  tnil  tHe  conveyance 

by  gift,  und  when  a  iile  estate  t-he  coiTrgySnce  waa  by  lease. 


160  DERIVATIVE  TITLES  (Part  2 

II.  Fine 
BLACI^STO^'fS^-  COMMENTARIES. 

A  fine  is  sometimes  said  to  be  a  feofifment  of  record:  though  it 
might  with  more  accuracy  be  called  an  acknowledgment  of  a  feuriment 
on  record.  By  which  is  to  be  understood,  that  it  has  at  lenst  tho  .'^nme 
force  and  effect  with  a  fenttrnpnt,  in  the  conveying  and  assurins:  of 
lancls.:  though  it  is  one  of  those  methods  of  transferring  estates  of 
freehold  by  the  common  law,  in  which  liverv  of  seisin  is  not  ncrrs'^nrv 
tp  be  actually  ^iven:._the  supposition  and  acknowledgment  thereof  in  a 
court  of  record,  however  fictitious,  mducmg  an  equal  notoriety.  But, 
more  particularly,  a  fine  may  be  described  to  be  an  amicable  composi- 
ion  or  agreement  of  a  suit,  either  actual  or  fictitious,  by  leave  of  the 
king  or  his  justices:  whereby  the_ lands  in  question  become,  or  are 
/acknowledged  to  be  the  right  of  one  of  the  parties :  In  its  original 
it  was  founded  on  an  actual  suit,  commenced  at  law  for  recovery  of 
Vossession  of  lands  or  other  hereditaments ;  and  the  possession  thus 
-'gained  by  such  composition  was  found  to  be  so  sure  and  effectual, 
that  fictitious  actions  were,  and  continue  to  be,  every  day  commenced, 
for  the  sake  of  obtaining  the  same  security. 
Book  2,  star  p.  348. 


III.  Common  Recovery 

BLACKSTONE'S  COMMENTARIES. 

A  common  recovery  is  so  far  like  a  fine,  that  it  is  a  suit  or  action, 
either  actual  or  fictitious ;  ^and  in  it  the  lands  are  recovered  against 
the  tenant  of  the  freehold :  which  recovery,  being  a  supposed  adju- 
dication of  the  right,  binds  all  persons,  and  vests  a  free  and_^bsolute 
fee-simple  in  the  recoveror.  A  recovery,  therefore,  being  in  the  nature 
of  an  action  at  law,  not  immediately  compromised  like  a  fine,  but  car- 
ried on  through  every  regular  stage  of  proceeding,  I  am  greatly  ap- 
prehensive that  its  form  and  method  will  not  be  easily  understood  by 
the  student  who  is  not  yet  acquainted  with  the  course  of  judicial 
proceedings;  which  cannot  be  thoroughly  explained,  till  treated  of  at 
large  in  the  third  book  of  these  Commentaries. 

Book  2,  star  p.  357.* 

*  For  an  account  of  the  procedure  in  common  recoveries,  see  Pollock,  Land 
-V  Laws,  SO;   Williams,  R.  P.  95  et  seq. 

<^  ^  By  the  Fines  and  Recoveries  Act.  3  &  4  W.  IV,  c.  74,  it  is  provfdetl-^at  after 

Jj^'    jj>jJ^      December  31.  18:^3.  no  fine  shall  be  levied  or  commog  recovery  siiffered  of 
fjjA>^\         l»«lds  of  any  tenure.  ~"  "If*^ 


4^ 


Ch.  1)  MODE  OF   CONVEYANCa  161 

IV.  Leas^ 

BLACKSTONE'S  COMMENTARIES. 

A  lease  is  properly  a  conveyance  of  any'  lands  or  tenements  (usu- 
ally in  consideration  of  rent  or  other  annual  recompense),  made  for 
lifCj^for  years,  or  at  will,  but^  jil\va;^s^r  a  less  time  than  the  lessor 
hatti_iQj:li£_pr^r{ii^Sj^  for  if  it  be  for  the  whoTe  interest,  it  is  more  prop- 
erly an  assjgnm^  than  a  lease.  The  usual  words  of  operation  in  it 
are,  "demise,  grant,  and  to  farm  let :  dimisi,  concessi,  et  ad  firmam  tra- 
didi."  Farm,  or  feorme,  is  an  old  Saxon  word  signifying  provisions; 
and  it  came  to  be  used  instead  of  rent  or  render,  because  anciently  the 
greater  part  of  rents  were  reserved  in  provisions ;  in  corn,  in  poultry, 
.ind  the  like :  till  the  use  of  money  became  more  frequent.  So  tliat 
a  farmer,  firmarius,  was  one  who  held  his  land  upon  payment  of  a 
rent  or  feorme :  though  at  present,  by  a  gradual  departure  from  the 
original  sense,  the  word  farm  is  brought  to  signify  the  very  estate  or 
lands  so  held  upon  farm  or  rent.  By  this  conveyance  an  estate  for 
life,  f^^rveaji^,  or  a^vvi^,  may  be  created,  either  in  corporc^Torin- 
corporeal  hereditaments  ;  though  livery  of  seisin  is  indeed  incident  and 
necessary  to  one  species  of  leases,  viz. :  leases  for  life  of  corporeal 
hereditaments ;    but  to  no  other. 

Book  2,  star  p.  317. 


V.  ExcHANce 


BLACKSTONE'S  COMMENTARIES. 

An  exchange  is  a  mutual  grant  of  equal  interests,  the  one  in  con- 
sideration of  the  other.     The  word  "exchange"  is  so  individually  req- 
uisite and  appropriated  by  law  to  this  case,  that  it  cannot  be  supplied 
by  any  other  word,  or  expressed  by  any  circumlocution.     The  estates        ^o^^;^ 
exchanged  must  be  equal  in  quantity,   not  of  value,  for  that  is  imma-  ^j^iL*..-^ ^^-'^^ 
tenal.  but  of  interest;  as  feQ;^sipTp4^g  fonf^e-siiTiple,  a  l^ase  jor.t^viinty..^;;.^.^.^ 

yg^j^  for^  l^s^  i^or  twejity.^  years,  and  the  like.     And  the  exchango? 

may  be  of  things  that  lie  either  in  grant  or  in  livery.  But  no  livery  of 
seisin,  even  in  exchanges  of  freehold,  i  s  necessary  to  perfect  the  con  - 
veyance :  for  each  party  stands  in  the  place  of  the  other  and  occupies 
his  right,  and  each  of  them  hath  already  had  corporal  possession  of  his 
own  land.  But  entry  must  be  made  on  both  sides,  for,  if  either  party 
die  before  entry,  the  exchange  is  void,  for  want  of  sufficient  notoriety. 

Book  2,  star  p.  323.' 
Aig.Peop. — 11 


162  DERIVATIVE  TITLES  (Part  2 

VI.  Partition 

BLACKSTONE'S  COMMENTARIES. 

A  partition  is  when  two  or  more  joint-tenants,  coparceners,  or  ten- 
ants in  common.  agree_^to  divide  the  lands  so  held  among  tliem  in  sev- 
eralty, each  taking  a  distinct  part. 

Book  2,  star  p.  2)2Z^ 


VII.  Grant 


r.fzi 


BLACKSTONE'S  COMMENTARIES. 

Grants,  concessiones ;  the  regular  method  by  the  commop  Inw  nf 
transferring  the  property  of  incorporeal  hereditaments,  or  such  things 
whereof  no  livery  can  be  had.  For  which  reason  all  corporeal  here- 
ditaments,  as  lands  and  houses,  are  said  to  lie  in  livery ;  and  the  others, 
.  as  advowsons.  commons,  rcnts^  reversions,  etc..  to  lie  in  errant.  Snd 
/  the  reason  is  given  by  Bracton :  "traditio,  or  livery,  nihil  aliud  est 
quam  rei  corporalis  de  persona  in  personam,  de  manu  in  manum,  trans- 
atio  aut  in  possessionem  inductio:  sed  res  incorporales,  qua^  sunt 
psum  jus  rei  vel  corpori  inha^rens,  traditionem  non  patiuntur"  Qiy- 
is  merely  the  transferring  from  one  person  to  another,  from  one 
hand  to  another,  or  the  induction  into  possession  of  a  corporeal  here- 
ditament; but  an  incorporeal  hereditament,  which  is  the  right  itself  to 
a  thing,  or  inherent  in  the  person,  does  not  admit  of  delivery).  These, 
therefore^  pass  merely  by  the  delivery  of  the  deed.  And  in  seigniories, 
or  reversions  of  lands,  such  grant,  together  with  the  attornment" 
of  the  tenant  (while  attornments  were  requisite),  were  held  to  be  of 
equal  notoriety  with,  and  therefore  equivalent  to,  a  feoffment  and  liv- 
ery of  lands  in  immediate  possession.  It  therefore  diflfers  but  Ijttle 
from  a  feoffment,  exc^^t  in  jts  subject-matter ;  for  the  operative  words 
thenein  commonly  used  are  dedi  et  concessi,  "have  given  and  granted." 
Book  2,  star  p.  317. 

6  See  infra,  pp.  687,  6S9, 

6  See  Litt.  551,  5G7-5C9 ;    Co.  Litt.  .309.  a,  b. 

"And  be  it  further  enacted  by  the  nuthority  afore.<?aid.  TJiat  from  and  after 
the  first  day  of  Trinity  term  all  grants  or  conveyances  thereafter  to  Jie 
made,  by  fine  or  otherwise,  of  any  manors  or  rents,  or  of  the  reversion  or 
rayiainder  9f  a"ny  messuau^es  or  lands,  shall  Iip  gonf]^  and  effectual.~to  all  In- 
tents  and  purposes,  wif|iti^j--^np^^nttornmi2it  of  _fhe  lepants  of  any  such 
manors,  or  of  the  land  out  of  whiclisuclT  rentslTall  be  issuins:,  or  of  the  par- 
ticular tenants  upon  whose  particular  estates  any  such  reversions  or  remain- 
ders shall  and  may  be  expectant  or  depending,  as  if  their  attornment  had 
been  had  and  made."     St.  4  Anne  (1705)  c.  16.  §  9. 

As  to  necessity  for  attornment  in  the  United  States,  see  Tiffany,  Landlord 
&  Tenant,  §  146f. 


Ch.  1)  MODE  OF  CONVEYANCH  163 

VIII.  Dedication  C  C,    \J\      /  9 (>  3 

REX  V.  HUDSON. 

(Court  of  Kins's  Bench,  1732.     2  Strange,  909.) 

On  an  information  for  stopping  up  a  common  font-way,  the  prose- 
cutor proved,  that  it  had  been  a  common  passage  under  the  defendant's 
house  as  far  back  as  anv  witnesses  could  remember.  But  the  defend- 
ant producing  a  lease  made  for  fifty-six  years  of  this  way,  to  the  intent 
it  might  be  a  passage  during  the  term,  and  the  term  expiring  in  1728 ; 
the  Chief  Tustire  rRAVAfONn)  held  the  defendant  not  guilty:  and  as  to  u  jAf^^yy^  (n 
thejenving  it  open  since,  he  said  that  it  would  not  be  long^  enough  to   -^"j^ 


amount  to  a  gift  of  it  to  the  public.'^ 

LADE  V.  SHEPHERD. 

(Court  of  King's  Bench,  1735.    2  Strange,  1004.) 

Upon  trial  of  an  action  of  trespass  a  case  was  made,  that  the  place 
where  the  supposed  trespass  was  committed  was  formerly  the  property 
of  the  plaintiff,  who  some  years  since  built  a  street  upon  U.  which_bas 
ever  sinceTecn  used  as  a  highway.  That  the  defgniljint  had  land  con- 
tiguous parted  only  by  a  ditch,  and  that  he  laid_a_l)ridge  over  the  ditch, 
the  end  whereof  rested  on  the  highway.  And  it  was  insisted  for  the 
defendant,  tliat  by  the  plaintiff's  making  it  a  street,  it  was  a  dedication 
of  it  to  the  public ;  and  therefore  however  he  might  be  liable  to  an  in- 
dictrnenftor  a  nuisance,  yet  the  plaintiff  could  not  sue  him  as  for  a 
trespass  on  his  private  property.  Sed  per  Curi.vm.  Tt  is  rertninlv  a 
dedication  to  the  public,  so  far  as  the  public  has  occasion  ^^^  n,  ^v'"^'^"' 
is  only  for  a  right  of  passage.  Rut  ij_  never  was  understomLJo 
be  a  transfer  of  the  absolute  property  in  the  soil.  So  the  plaintiff  had 
j  udgment. 

7  mat  six  yenrs  mnv  be  sufficient  time  whert^in  to  presume  a  dedication 
from  user,  isee  Rugby  c''hnnty  V.  Merrywentnor.  11  Knst.  .'^75.  note.  T'ser  for 
eiL^hn-fn"  months,  where  there  was  a  declaration  of  iiitontioii  to  dedicnte.  lipid 
sfrnicient  in'  N  London  \l.  Co.  v  ^t.  Mary,  Isiinyton.  21  W.  K.  2U(J  (1.^72). 
"Xo  particular  time  i.s  necessary  for  evidence  of  a  dedication;  it  is  not.  like 
a  firaiit,  presumed  from  length  "of  time;  if  the  act  of  dedication  be  unequiv- 
ocal, it  may  take  place  imuiediatcly;  for  instance,  if  a  man  Diiiias  a  umible 
row  of  houses  opening  into  an  ancient  street  at  each  end  niaking  a  street^ 
and  sells  or  let^  thP  hnn'^ps.  that,  is  instantly  a  nigpway^-  uimmore,  J.,  in 
WOudver  v.  iladden.  5  Taunt.  12.">  (181.''>). 

A.  is  tenant  for  life,  the  remainder  in  fee  being  in  B. ;  A.  dedicates  a  por- 
tion of  the  land  as  a  highway.  What  effect,  if  any.  would  such  dedication 
have  upon  B.?    See  FarquharV.  Is'ewbury  Rural  Council,  \lWd\  1  Ch.  12. 


V 


164  DERIVATIVE  TITLES  (Part  2 

REX  V.  LLOYD. 
(Court  of  King's  Bench,  180S.    1  Camp.  260.) 

This  was  an  indictment  for  obstructing  a  hi^qhway. 

It  appeared  that  tlie  place  in  question  is  a  narrow  passage  lying  on 
the  north  side  of  Snow-Hill,  called  Cock-court;  and  being  of  an  oblong 
shape,  leads  from  one  part  of  this  street  to  another,  without  having  any 
outlet  elsewhere.  The  houses  all  the  way  round  had  once  belonged  to 
the  same  individual ;  and  the  defendant,  having  purchased  tliose  at  the 
top  of  the  court,  built  a  wall  across  there,  interceptmg  all  communica- 
tion between  the  i-wn  <;if]p"  nnlrm  Irpirn}'  nf  Snn-jv  T^ill  Till  then,  the 
passage  had  been  open  as  far  back  as  could  be  remembered ;  and  though 
it  could  in  general  be  of  no  use  to  those  walking  up  and  down  Snow- 
Hill  being  a  most  circuitous  route  which  no  one  would  willingly  take, 
yet  it  was  convenient  for  the  public  when  the  street  was  blocked  up  bv 
a  crowd.  The  passage  had  been  long  lighted  bv  the  citv  of  London 
and  there  had  never  been  any  chain  across  it,  or  any  mark  to  denote  its 
being  private  property. 

Lord  EllExborougii.  I  think,  that  if  places  are  lighted  by  public 
bodies,  this  is  strong  evidence  of  the  public  having  a  right  of  way  over 
them ;  and  tQ  say  that  this  right  cannot  exist  because  a  particular  place 
does  not  lead  -coftveiiicixtly  from  one  street  to  another,  would  go  to  cx- 
trn|guish  all  highways  where  Tas  in  Oueensauarc'l  there  is  no  thorough- 
fare.  If  the  owner  of  the  soil  throws  open  a  passage,  and  neither 
marks  by  any  visibly,  distinction,  that  he  means  to  preserve  all  his 
rights  over  it,  nor  excludes  persons  from  passing  through  it  by  positive 
prohibition,  he  shall  be  presumed  to  have  dedicated  it  to  the  public. 
Although  the  passage  in  question  was  originally  intended  only  for  pri- 
vate  convenience,  the  public  are  not  now  to  be  excluded  from  it,  after 
being  allowed  to  use  it  so  long  without  any  interruption. 

The  defendant  wa«;  fnnnH  {ym'liy  "  - .  --■ 

8  Tlmt  there  cannot  be  a  dedication  to  a  vnrtion  of  the  nubll^,  i=ifp  r»"»^Q  v. 
Huskin^^on,   11   M.    &    W.   S-JT    (184:;).      But   see   Worinley   v.    Worniley,   infra. 

A  bridge  may  be  a  public  bridge  by  dedication,  altliough  the  right  of  the 
public  to  use  same  is  limited  to  such  times  as  the  river  is  not  fordable.  Rex 
V.  Northampton,  2  M.  «&  S.  2G2  (1S14).  As  to  dedication  for  limited  i>nrposes, 
see  Stafford  v.  Coyney,  7  B.  &  C.  257  (1S27);  Gowen  v.  Philadelphia  Ex- 
cbauge  Co.,  5  Watts  &  S.  (Pa.)  141,  40  Am.  Dec.  4S9  (1S43).  And  as  to  dpdica- 
tion  subject  to  re.servations  on  behalf  of  tbe  owner,  see  Mercer  v.  Woodgate, 
Li.  R.  5  Q.  B.  26  (1869),  where  the  owner  claimed  the  right  to  plough  up  the 
way  periodically;  Attorney  General  v.  Horner,  [1913]  2  Ch.  140,  where  the 
owner  claimed  land  had  been  dedicated  for  street  purposes  subject  to  a  right 
of  overflow  from  a  private  market ;  City  of  Noblesville  v.  Lake  Erie  &  W.  R. 
Co.,  130  Ind.  1,  29  N.  E.  484  (1891),  where  the  dedication  of  a  street  was 
claimed  to  be  subject  to  the  right  to  lay  down  a  railroad  therein. 


Ch.  1)  MODE   OF  CONVEYANCE)  165 

CINCINNATI  V.  WHITE. 
(Supreme  Court  of  the  United  States,  1S32.     6  Pet.  431,  8  L.  Ed.  452.) 

Error  to  the  Circuit  Court  of  Ohio.  The  case  came  before  the  court 
on  a  bill  of  exceptions,  taken  by  the  plaintiffs  in  error,  the  defendants 
in  the  circuit  court,  to  the  instructions  given  by  the  court  to  the  jury, 
on  the  request  of  the  counsel  for  the  plaintiff's  in  that  court;  and  to 
the  refusal  of  the  court  to  give  certain  instructions  as  prayed  for  by 
the  defendants  below. 

In  the  opinion  of  the  court,  no  decision  was  given  on  those  excepn 
tions,  save  only  on  that  which  presented  the  question  of  the  dedication 
of  the  land  in  controversy  for  the  use  of  the  city  of  Cincinnati ;  which, 
and  the  facts  of  the  case  connected  therewitli,  are  fully  stated  in  the 
opinion  of  the  court.  The  arguments  of  the  counsel  in  the  case,  on 
the  matters  of  law  presented  by  the  exceptions,  are,  therefore,  neces- 
sarily omitted. 

Thompson,  J.,  delivered  the  opinion  of  the  court.  The  eiectnient 
in  this  case  was  brought  by  Edward  White,  who  is  also  the  defendant 
in  error,  ^o  recover  tJo.ss(;^ssi()n  of  a  small  lot  of  ground,  in  the  city  of 
Cincinnati.  lyin!£-  in  thai  uart  of  the  city  usually  denominated  the  com- 
HiSin. 

To  the  right  understanding  of  the  question  upon  which  the  opinion 
of  the  court  rests,  it  will  be  sufficient  to  state,  generally,  that  on  the 
15th  of  October,  in  the  year  1788.  John  Cleves  Symmes  entered  into 
a  contract  with  the  then  board  of  treasury,  under  the  direction  of 
congress,  for  the  purchase  of  a  large  tract  of  land,  then  a  wilderness, 
including  that  where  the  city  of  Cincinnati  now  stands.  Some  negotia- 
tions relative  to  the  payments  for  the  land  delayed  the  consummation 
of  the  contract  for  several  years ;  but  on_thc  30th  of  September  1794, 
a  patent  was  issued,  conveying  to  Symmes  and  his  associates,  the  land 
contracted  for ;  and  as  Symmes  was  the  only  person  named  in  the  pat- 
ent, die  fee  was,  of  course,  vested  in  him.  Before  the'  issuing  of  the 
patent,  however,  and,  as  the  witnesses  say,  in  the  year  1788,  Matthias 
Penman  purchased  of  Symmes  a  part  of  the  tract  inrlndrH  in  ^he  pat- 
en |yandcniba_aan^j^  That  in 
the  same  year,  Denman  sold  one-third  of  his  purchase  to  Israel  Lud- 
low, and  one-third  to  Ro"bert  Patterson.  These  three  persons,  Den- 
man, Ludlow  and  Patterson  being  the  equitable  owners  of  the  ]^;\iA 
(nn  Ipo-nl  |j|]p  having  hppn  crr.nntpd),  proceeded,  in  January.  1789.  to 
lay  out  the  town.  A  plan  was  made  and  approved  of  by  all  the  pro- 
prietors ;  according  to  which,  the  ground  lying  between  Front  street 
and  the  river,  and  so  located  as  to  include  the  premises  in  question, 
was  set  apart  as  a  common,  for  the  use  and  benefit  of  the  town  for 
ever,  reservmg  only  the  right  of  a  ferry ;  and  no  lots  were  laid  out  on 
the  land  tlius  dedicated  as  a  common. 


166  DERIVATIVE  TITLES  (Part  2 

The  lessor  of  the  plaintiff  made  title  to  the  premises  in  question  un- 
der Matthias  Denman,  and  produced  in  evidence  a  copy,  duly  authenti- 
cated, of  the  location  of  the  fraction  17,  from  the  books  of  John  C. 
Symmes,  to  Matthias  Denman,  as  follows:  "1791,  April  4,  Captain 
Israel  Ludlow,  in  behalf  of  Mr.  Matthias  Denman,  of  New  Jersey, 
presents  for  entry  and  location,  a  warrant  for  one  fraction  of  a  section, 
or  107.8  acres  of  land,  by  virtue  of  which  he  locates  the  17th  fractional 
section  in  the  4th  fractional  township,  east  of  the  Great  Miami  river, 
in  the  first  fractional  range  of  townships  on  the  Ohio  river;  number 
of  the  warrant,  192."  In  March  1795,  Denman  conveyed  his  interest, 
which  was  only  an  equitable  interest,  in  the  lands  so  located,  to  Joel 
Williams;  and  on  the  14th  of  February,  18C0,  John  Cleves  vSymmes 
conveyed  to  Joel  Williams  in  fee,  certain  lands  described  in  the  deed, 
which  included  the  premises  in  question;  and  on  the  16th  of  April 
1800,  Joel  Williams  conveyed  to  John  Daily  the  lot  now  in  question. 
And  the  lessor  of  the  plaintift,  by  sundry  mesne  conveyances,  deduces 
a  title  to  the  premises  to  himself. 

In  the  course  of  the  trial,  several  exceptions  were  taken  to  the  ruling 
of  tlie  court,  with  respect  to  tlie  evidence  olifered  on  the  part  of  the 
plaintiff,  in  making  out  his  claim  of  title.  But  in  the  view  which  the 
court  has  taken  of  what  may  be  considered  the  substantial  merits  of  the 
case,  it  becomes  unnecessary  to  notice  those  exceptions. 

The  merits  of  the  case  will  properly  arise  upon  one  of  the  instruc- 
tions given  by  the  court,  as  asked  by  the  plaintiff;  and  in  refusing  to 
give  one  of  the  instructions  asked  on  the  part  of  the  defendant. PAt 
the  request  of  the  plaintiff',  the^ court  instructed  the  jury,  "that  to  en- 
able the  city  to  hold  this  ground,  and  defend  themselves  in  this  action, 
by  possession,  they  must  show  an  unequivocal,  uninterrupted  posses- 
sion for  at  least  twenty  years."  On  the  part  of  the  defendants,  the 
court  was  asked  to  instruct  the  jury,  "that  it  was  competent  for  the 
original  proprietors  of  the  town  of  Cincinnati  to  reserve  and  dedicate 
any  part  of  said  town  to  public  uses,  without  granting  the  same  by 
writing  or  deed  to  any  particular  person;  by  which  reservation  and 
dedication,  the  whole  estate  of  the  said  proprietors  in  said  land,  thus 
reserved  and  dedicated,  became  the  property  of,  and  was  vested  in,  the 
public,  for  the  purposes  intended  by  the  said  proprietors;  and  that, 
by  such  dedication  and  reservation,  the  said  original  proprietors,  and 
all  persons  claiming  under  them,  are  estopped  from  assertiQw  any  claim 
or  right  to  the  said  land  thus.jpserved  and  dedicated."  The  court  r^ 
fused. to  give  the  instruction  as, asked,  but  gave  the  following  iastruc- \ 
tion:  "That  it  was  competent  for  the  original  proprietors  ..oi  the  town 
of  Cincinnati  to  reserve  and  dedicate  any  part  of  said  town  to  public 
uses,  without  granting  the  same,  by  writing  or  deed,  to  any  particular 
person ;  by  which  reservation  an^  dedication,  the  right  of  use  to  such 
part  is  vested  in  the  public  for  the  purposes  designated ;  but  that  such 
reservation  and  dedication  do  not  invest  the  public  with  the  fee." 


Ch.  1)  MODE  OF  CONVEYANCE  167 

The  ruling  of  the  court,  to  be  collected  from  these  instructions,  was, 
that  although  there  might  be  a  parol  reservation  and  dedication  to  the 
public  of  the  use  of  lands ;  yet  such  reservation  and  dedication  did 
not  invest  the  public  with  the  fee;  and  that  a  possession  and  enjoy- 
ment of  the  use  for  less  than  twenty  years  was  not  a  defence  in  this 
action.  The  decision  and  direction  of  the  circuit  court  upon  those 
points  come  up  on  a  writ  of  error  to  this  court. 

It  is  proper,  in  the  first  place,  to  observe,  that  although  the  land 
which  is  in  dispute,  and  a  part  of  which  is  the  lot  now  in  question,  has 
been  spoken  of  by  the  witnesses  as  having  been  set  apart  by  the  pro- 
prietors as  a  common,  we  are  not  to  understand  the  term  as  used  by 
them  in  its  strict  legal  sense,  as  being  a  right  or  profit  which  one  man 
may  have  in  the  lands  of  another  ;|  but  m  its  popular  sense,  as  a  piece' 
of  ground  left  open  for  commons  and  public  use,  for  the  convenience 
and  accommodation  of  the  inhabitants  of  the  town.  "~^ 

Dedications  of  land  for  public  purposes  have  frequently  come  un- 
der the  consideration  of  this  court;  and  the  objections  which  have 
generally  been  raised  against  their  validity  have  been  the  want  jofa_  j^ 

grantee  competent  to  taketlie  titlej  applying  to  them  the  rule  which 
^revails^in  private  grants,  that  there  must  be  a  grantee  as  well  as  a 
grantor.  But  that  is  not  the  light  in  which  this  court  has  considered 
such  dedications  for  public  use.  The  law  applies  to  them  rules  adapt- 
ed to  the  nature  and  circumstances  of  the  case,  and  to  carry  into  execu- 
tion die  intention  and  object  of  the  grantor,  and  secure  to  the  public 
the  benefit  held  out,  and  expected  to  be  derived  from  and  enjoyed,  by 
the  dedication.  '\ 

It  was  admitted  at  the  bar,  ithat  dedications  of  land  for  charitabla 
and  religious  purposes,  and  for  public  highways,  were  valid,  without 
any  grantee  to  whom  the  fee  could  be  conveyed^  TtTfhough  such  are 
the  cases  which  most  frequently  occur  and  are  to  be  found  in  the 
books,  it  is  not  perceived,  how  any  well  grounded  distinction  can  be 
made  between  such  cases  and  the  present.  The  same  necessity  exists 
in  the  one  case  as  in  the  other  for  the  purpose  of  effecting  the  object 
intended.  The  principle,  if  well  foundedjn  the  law,  must  have  a  gen- 
eral  applicatiqn_Jo_all  appropriations  and  dedications  for  public  use, 
where  there  is  no  grantee  in  esse  to  take  the  fee.  But  this  forms  an 
exception  to  the  rule  applicable  to  private  grants,  and  grows  out  of  the 
necessity  of  the  case.  In  this  class  of  cases,  there  may  be  instances, 
contrary  to  the  general  rule,  where  the  fee  may  remain  in  abeyance, 
until  there  is  a  grantee  capable  of  taking;  where  the  object  and  pur- 
pose of  the  appropriation  look  to  a  future  grantee,  in  whom  the  fee  is 
to  vest.  But  the  validity  of  the  dedication  does  not  depend  on  this; 
it  will  preclude  the  party  making  the  appropriation  from  re-asserting 
any  right  over  the  land,  at  all  events,  so  long  as  it  remains  in  public 
use,  although  there  may  never  arise  any  grantee  capable  of  taking  the 
fee. 


168  DEuivATivE  TITLES  (Part  2 

The  recent  case  of  Beatty  v.  Kurtz,  2  Pet.  266,  7  L.  Ed.  521,  in  this 
court,  is  somewhat  analogous  to  the  present.  There,  a  lot  of  ground 
had  been  marked  out  upon  the  original  plan  of  an  addition  to  George- 
town, "for  the  Lutheran  Church."  and  had  been  used  as  a  place  of 
burial,  from  the  time  of  the  dedication.  There  was  not,  how'cver,  at 
the  time  of  the  appropriation,  or  at  any  time  afterwards,  any  incor- 
porated Lutheran  church,  capable  of  taking  the  donation.  The  case 
turned  upon  the  question,  whether  the  title  to  the  lot  ever  passed  from 
Charles  Beatty,  so  far  as  to  amount  to  a  perpetual  appropriation  of  it 
to  the  use  of  the  Lutheran  church.  That  was  a  parol  dedication  only, 
and  designated  on  the  plan  of  the  town.  The  principal  objection  re- 
lied upon  was,  that  there  was  no  grantee  capable  of  taking  the  grant. 
But  the  court  sustained  the  donation,  on  the  ground,  that  it  was  a 
dedication  of  the  lot  to  public  and  pious  uses;  adopting  the  principle 
that  had  been  laid  down  irLthe  case  of  the  Town  of  Pawlet  v.  Clark,  9 
Cranch,  292,  3  L.  Ed.  735,»that  appropriations  of  this  description  were 
exceptions  to  the  general  rule  requiring  a  granttnTl  That  it  was  like  a 
dedication  of  a  highway  to  the  public.  This  last  remark  shows  that  the 
case  did  not  turn  upon  the  bill  of  rights  of  Maryland,  or  the  statute  of 
Elizabeth  relating  to  charitable  uses,  but  rested  upon  more  general 
principles ;  as  is  evident  from  what  fell  from  the  court  in  the  case  of 
the  Town  of  Pawlet  v.  Clark,  which  was  a  dedication  to  religious  uses; 
yet  the  court  said,  this  was  not  a  novel  doctrine  in  the  common  law. 
In  the  familiar  case,  where  a  man  lays  out  a  street  or  public  highway 
over  his  land,  there  is,  strictly  speaking,  no  grantee  of  the  easement, 
but  it  takes  effect  by  way  of  grant  or  dedication  to  public  uses.  And 
in  support  of  tlie  principle,  the  case  of  Lade  v.  Shepherd,  2  Str.  1004, 
was  referred  to ;  which  was  an  action  of  trespass,  and  the  place  where 
the  supposed  trespass  was  committed  was  formerly  the  property  of  the 
plaintiff,  who  had  laid  out  a  street  upon  it,  which  had  continued  there- 
after to  be  used  as  a  public  highway ;  and  it  was  insisted,  on  the  part 
of  the  defendant,  that  by  the  plaintiff's  making  a  street,  it  was  a  dedi- 
cation of  it  to  the  public,  and  that  although  he,  the  defendant,  might  be 
liable  for  a  nuisance,  the  plaintiff  could  not  sue  him  for  a  trespass. 
But  the  court  said,  it  is  certainly  a  dedication  to  the  public,  so  far  as 
the  public  has  occasion  for  it,  which  is  only  for  a  right  of  passage; 
but  it  never  was  understood  to  be  a  transfer  of  his  absolute  property 
in  the  soil.  The  doctrine  necessarily  growing  out  of  that  case  has  a 
.sirong  bearing  upon  the  one  now  before  the  court,  in  two  points  of  view. 
4it  shows,  in  the  first  place,  that  no  deed  or  writing  was  necessary  to  ^ 
Iconstitute  a  valid  dedication  of  the  easement.  All  that  was  done,  from 
^iljflhing  that  appears  in  the  case,  was  barely  laying  out  the  street  by 
the  owner,  across  his  land.  fAnd  in  the  second  place,  that  it  is  not 
necessary  that  the  fee  of  the  land  should  pass,  in  order  to  secure  theT 
easement  to  the  public.  And  this  must  necessarily  be  so,  from  the '  ■ 
nature  of  the  case,  in  the  dedication  of  all  public  highAvays.  There  is  ' 
no  grantee  to  take  immediately,  nor  is  any  one  contemplated  by  die  . 


Ch.  1)  MODE  OP  CONVEYANCE  160 

party  to  take  the  fee  at  any  future  day.  No  grant  or  conveyance  can 
be  necessary  to  pass  .the  iee_out  of  ,the._Q\vner  of  the  land,  and  let  it 
remain  in  abeyance,  until  a  grantee  shall  come  in  esse;  and  indeed,  the 
case^reTelTeHtoTn  Strange  considers  the  fee  as  remaining  in  the  origi- 
nal owner;  otherwise,  he  could  sustain  no  action  for  a  private  injure- 
to  the  soil,  he  having  transferred  to  the  public  the  actual  possession^__ 
If  this  is  the  doctrine  of  the  law,  applicable  to  highways,  it  must  ap- 
ply with  equal  force,  and  in  all  its  parts,  to  all  dedications  of  land  to 
public  uses ;  and  it  was  so  applied  by  this  court  to  the  reservation  of  a 
public  spring  of  water,  for  public  use,  in  the  case  of  McConneU  y. 
Trustees  of  the  Town  of  Lexington,  12  Wheat.  582,  6  L.  Ed.  735. 
The  court  said,  the  reasonableness  of  reserving  a  public  spring,  for 
public  use,  the  concurrent  opinion  of  all  the  settlers  that  it  was  so  re- 
served, the  universal  admission  of  all  that  it  was  never  understood, 
that  the  spring  lot  was  drawn  by  any  person,  and  the  early  appropria- 
tion of  it  to  public  purposes,  were  decisive  against  the  claim. 

The  right  of  the  public  to  the  use  of  the  common  in  Cincinnati  must 
rest  on  the  same  principles  as  the  right  to  the  use  of  the  streets ;  and 
no  one  will  contend,  that  the  original  owners,  after  having  laid  out 
streets,  and  sold  building  lots  thereon,  and  improvements  made,  could ^ 
claim  the  easement  thus  dedicated  to  the  public.  All  public  dedications' 
must  be  considered  with  reference  to  the  use  for  which  they  are  made ; 
and  streets  in  a  town  or  city  may  require  a  more  enlarged  right  over 
the  use  of  the  land,  in  order  to  carry  into  effect  the  purposes  intended, 
than  may  be  necessary  in  an  appropriation  for  a  highway  in  the  coun- 
try;  but' the  principle,  so  far  as  respects  the  right  of  the  original  owner 
to  disturb  the  use,  must  rest  on  the  same  ground,  in  both  cases ;  and_ 
applies  equally  to  the  dedication  of  the  common  as  to  the  streets,  fit 
was  for  the  public  use,  and  the  convenience  and  accommodation  of  the 
inhabitants  of  Cincinnati ;  and,  doubtless,  greatly  enhanced  the  value 
of  the  private  property  adjoining  this  common,  and  thereby  comi>en- 
sated  the  owners  for  the  land  thus  thrown  out  as  public  grounds.  And 
aiterJbdng^thuAselapart  for  public  use,  and  enjoyed  as  such,  and  pri- 
vate ^n£indiyidualj^ights  acquired  with  reference  to  it,  the  law  con-  , 
giders  it  in  the  nature  of  an  estoppel  in  pais,  which  precludes  the  origi-  1 
nal  owner  from  revoking  such  dedication.  It  is  a  violation  of  good  \ 
faith  to  the  public,  "and  to  those  who  have  acquired  private  property  i 
with  a  view  to  the  enjoyment  of  the  use  thus  publicly  granted.  j 

The  right  of  the  public,  in  such  cases,  does  not  depend  upon  a  twenty 
years'  possession.  Such  a  doctrine,  applied  to  public  highways  and  the 
streets  of  the  numerous  villages  and  cities  that  are  so  rapidly  springing  ■ 
up  in  every  part  of  our  country,  would  be  destructive  of  public  con- 
veniencc^and  private  right.  The  case  of  Jarvis  v.  Dean,  3  Bing.  447, 
sho\i:5,\that  rights  of  this  description  do  not  rest  upon  length  of  posses- 
g^r  The  plaintiff's  right  to  recover  in  that  case,  turned  upon  the 
question,  whether  a  certain  street,  in  the  parish  of  Islington,  had  been 
dedicated  to  the  public  as  a  common  public  highway.     Chief  Justice 


w 


1/ 


170  DERIVATIVE  TITLES  (Part  2 

Best,  upon  the  trial,  told  the  jury,  that  if  they  thought  the  street  had 
been  used  for  years  as  a  public  thoroughfare,  with  the  assent  of  the 
owner  of  -the  soil,  they  might  presume  a  dedication  ;  and  the  jury 
found  a  verdict  for  the  plaintiff,  and  the  court  refused  to  grant  a  new 
trial,  but  sanctioned  the  direction  given  to  the  jury  and  the  verdict  " 
found  thereupon ;  although  this  street  had  been  used  as  a  public  road 
only  four  or  five  years;   the  court  saying,  the  jury  were  warranted  in 

jii;esuming  it  was  used  with  the  full  assent  of  the  owner  of  the  soil. 

I  The  point,  therefore,  upon  which  the  establishment  of  the  public  street 

'rested,  was,  whether  it  had  been  used  by  the  public  as  such,  with  the 
assent  of  the  owner  of  the  soil ;  not  whether  such  use  had  been  for  a 
length  of  time,  which  would  give  the  right  by  force  of  the  possession; 
nor  whether  a  grant  might  be  presumed ;  but  whether  it  had  been  used 
with  the  assent  of  the  owner  of  the  land;  necessarily  implying,  that 
the  mere  naked  fee  of  the  land  remained  in  the  owner  of  the  soil,  but 
that  it  became  a  public  street,  by  his  permission  to  have  it  used  as  such. 
Such  use,  however,  ought  to  be  for  such  a  length  of  time  that  the  pub- 
lic accommodation  and  private  rights  might  be  materially  affected  by 
an  interruption  of  the  enjoyment. 

In  the  present  case,  the  fact  of  dedication  to  public  use  is  not  left 
to  inference,  from  the  circum5j:ance  that  the  land  has  been  enjoyed  as 
aj;:Qmmon-4^i'-many  years.  IfBut  the  actual  appropriation  for  that  pur- 
)ose  is  established  by  the  irlbst  positive  and  conclusive  evidence.  And 
'indeed,  the  testimony  is  such  as  would  have  warranted  the  jury  in  pre- 
suming a  grant,  if  that  had  been  necessary.  And  the  fee  might  be  con- 
sidered in  abeyance,  until  a  competent  grantee  appeared  to  receive  it; 
which  was  as  early  as  the  year  1802,  when  the  city  was  incorporated. 
And  the  common  having  then  been  taken  under  the  charge  and  direc- 
tion of  the  trustees,  would  be  amply  sufficient  to  show  an  acceptance, 
if  that  was  necessary,  for  securing  the  protection  of  the  public  right. 

But  it  has  been  argued,  that  this  appropriation  was  a  nullity,  because  ' 
the  proprietors,  Denman,  Ludlow  and  Patterson,  when  they  laid  out 
the  town  of  Cincinnati,  and  appropriated  this  ground  as  a  common,  in 
the  year  1789,  had  no  title  to  the  land,  as  the  patent  to  S'ymmes  was 
not  issued  until  the  year  1794.  It  is  undoubtedly  true,  that  no  legal 
title  had  passed  from  the  United  States  to  Symmes.  BuMhe  proprie- 
tors had  purchased  of  Symmes  all  his  equitable  right  to  their  part  of 
the  tract  which  he  had  under  his  contract  with  the  government.  This 
objection  is  more  specious  than  solid,  and  does  not  draw  after  it  the 
conclusions  alleged  at  the  bar. 

There  is  no  particular  form  or  ceremony  necessary  in  the  dedication 
of  land  to  public  use.    All  that  is  required  is  the  assent  of  the  owner  of  "^ 
the  land,  and  the  fact  of  its  being  used  for  the  public  purposes  in-     \ 

sanded  by  the  appropriation.  This  was  the -doctrine  in  the  case  of 
Jafvis  V.  Dean,  already  referred  to,  with  respect  toa_,st£££l.;_aGd  the 
same  rule  must  apply  to  all  public  dedications  ;|ran3~from  the  mere  use 
of  the  land,  as  public  land,  thus  appropriated,  the  assent  of  the  owner 


Ch.  1)  MODE  OP  CONVEYANCE  171 

/may  be  presumed.     In  the  present  case  there  having  been  an  actual 

'j/     dedication,  fully  proved,  a  contined  assent  will  be  presumed,  until  a 

/    dissent  is  shown ;   and  this  should  be  satisfactorily  established  by  the 

I    partjc^laiming  against  the  dedications;    In  the  case  of  Rex  v.  Lloyd,  1 

^  Campr2627  Lord  Ellenborough~s"aysr  if  the  owner  of  the  soil  throws 

open  a  passage,  and  neither  marks  by  any  visible  distinction  that  he 

means  to  preserve  all  his  rights  over  it,  nor  excludes  persons  from 

passing  through  it  by  positive  prohibition,  he  shall  be  presumed  to  have 

dedicated  it  to  the  public. 

^J^t  the  time  the  plan  of  the  town  of  Cincinnati  was  laid  ou.t  by  the 
proprietors,  and  the  common  dedicated  to  public  use,  no  legal  title 
had  been  granted.  But  as  soon  as  Sj'mmes  became  vested  with  the 
legal  title,  under  the  patent  of  1794,  the  equitable  right  of  the  pro- 
prietors attached  upon  the  legal  estate,  and  Symmes  became  their 
trustee,  having  no  interest  in  the  land  but  the  mere  naked  fee.  And 
the  assent  of  the  proprietors  to  the  dedication  continuing,  it  has  the 
same  effect  and  operation  as  if  it  had  originally  been  made,  after  the 
patent  issued.  It  may  be  considered  a  subsequent  ratification  and 
affirmance  of  the  first  appropriation.  And  it  is  very  satisfactorily 
proved,. that  Joel  Williams,  from  whom  the  lessor  of  the  plaintiff  de- 
duces his  title,  well  understood,  when  he  purchased  of  Denman,  and 
for  some  years  before,  that  his  ground  had  been  dedicated  as  a  public 
common  by  the  proprietors.  The  original  plat,  exhibiting  this  ground 
as  a  common,  was  delivered  to  him  at  the  time  of  the  purchase.  And 
when  he,  afterwards,  in  the  year  1800,  took  a  deed  from  Symmes,  he 
must,  according  to  the  evidence  in  the  case,  have  known  that  he  was  a 
mere  trustee,  holding  only  the  naked  fee.  And  from  the  notoriety  of 
the  fact,  that  these  grounds  were  laid  open  and  used  as  a  common,  it  is 
fairly  to  be  presumed,  that  all  subsequent  purchasers  had  full  knowl- 
edge of  the  fact. 
/  But  it  is  contended,  that  the  lessor  of  the  plaintiff  has  shown  tlie 
/legal  title  to  the  premises  in  question  in  himself,  which  is  enough  to 
I  entitle  him  to  recover  at  law ;  and  that  the  defendants'  remedy,  if  any 
1  they  have,  is  in  a  court  of  equity.  And  such  was  substantially  the 
opinion  of  the  circuit  court,  in  the  fourth  instruction  asked  by  the 
plaintiff,  and  given  by  the  court,  viz :  "that  if  the  said  proprietors  did 
appropriate  said  ground,  having  no  title  thereto,  and  afterwards  ac- 
quired an  equitable  title  only,  that  equitable  title  could  not  inure  so  as 
to  vest  a  legal  title  in  the  city  or  citizens,  and  enable  them  to  defend 
themselves  in  an  action  of  ejectment  brought  against  them  by  a  person 
hol^iing  the  legal  title." 

We  do  not  accede  to  this  doctrine.    For  should  it  be  admitted,  that 
the  mere  naked  fee  was  in  tlie  lessor  of  the  plaintiff,  it  by  no  means 
follows,  that  he  is  entitledJi>-i:^COver  possession  of  the  comraojLjnjaDL 
action  of  ejectment.  fThis  is  a  possessory  action,  and  the  plaintiff,  to 
entitle  himself  to  recover,  must  have  the  right  of  possession;    and 


172  DERIVATIVE  TITLES  (Part  2 

whatever  takes  away  this  right  of  possession,  will  deprive  him  of  the 
remedy  by  ejectment,  Adams's  Eject.  32;  Stark,  part  4,  p.  506-7. 
This  is  the  rulejaid  down  by  Lord  Mansfield  in  Atkyns  v.  Horde,  1 
Burr.  119 -^^/f^n  ejectment,"  says  he,  "is  a  possessory  remedy,  and 
JnTy  competent  where  the  lessor  of  the  plaintiff  may  enter;  and  every 
plaintiff  in  ejectment  must  show  a  right  of  possession  as  well  as  of 
property."  And  in  the  case  of  Doe  v.  Staple,  2  T.  R.  684,  it  was  held, 
that  although  an  outstanding  satisfied  term  may  be  presumed  to  be  sur- 
rendered, yet  an  unsatisfied  term,  raised  for  the  purpose  of  securing 
an  annuity,  cannot,  during  the  life  of  the  annuitant;  and  may  be  set 
up  as  a  bar  tQ  the  heir-at-law,  even  though  he  claim  only  subject  to  the 
chafge.^  Thereby  clearly  showing,  the  plaintiff  must  have,  not  only  the 
le,  but  a  clear  present  right  to  the  possession  of  the  premises ; 
cannot  recover  in  an  action  of  ejectment.  And  in  the  case  of  Doe 
Jackson,  2  Dow.  &  Ry.  523,  Bailey,  Justice,  says,  '^An  action  of 
ejectment,  which  from  first  to  last  is  a  fictitious  remedy,  is  founded  on 
the  principle  that  the  tenant  in  possession  is  a  wrongdoer;  and  unless 
he  is  so,  at  the  tirfte  the  action  is  brought,  the  plaintiff  cannot  recover," 
If,  then,  it  is  indispensable,  that  the  lessor  of  the  plaintiff  should  show 
\y  a  right  of  possession  in  himself,  and  that  the  defendants  are  wrong- 

doers, it  is  difficult  to  perceive,  on  what  grounds  this  action  can  be  sus- 
tained. 

The  later  authorities  in  England  which  have  been  referred  to,  leave 
it  at  least  questionable,  whether  the  doctrine  of  Lord  Mansfield  in  the 
case  of  Goodtitle  v.  Alker,  1  Burr.  143,  "that  ejectment  will  lie  by  the 
owner  of  the  soil  for  land,  which  is  subject  to  a  passage  over  it  as  the 
king's  highway,"  would  be  sustained,  at  the  present  day,  at  Westminster 
Hall.  It  was  not,  even  at  that  day,  considered  a  settled  point,  for  the 
counsel  on  the  argument  (page  140),  referred  to  a  case,  said  to  have 
been  decided  by  Lord  Hardwicke ;  in  which  he  held,  that  no  possession 
could  be  delivered  of  the  soil  of  a  highway,  and  therefore,  no  ejectment 
would  lie  for  it.  This  doctrine  of  Lord  Mansfield  has  crept  into  most 
of  our  elementary  treatises  on  the  action  of  ejectment,  and  has  appar- 
ently, in  some  instances,  been  incidentally  sanctioned  by  judges.  But 
we  are  not  aware  of  its  having  been  adopted  in  any  other  case,  where 
it  was  the  direct  point  in  judgment.  No  such  case  was  referred  to  on 
the  argument,  and  none  has  fallen  under  our  notice.  There  are,  how- 
ever, several  cases  in  the  supreme  court  of  errors  of  Connecticut,  where 
the  contrary  doctrine  has  been  asserted  and  sustained,  by  reasons  much 
more  satisfactory  than  those  upon  which  the  case  in  Burrow  is  made 
to  rest.  Stiles  v.  Curtis,  4  Day  (Conn.)  328;  Peck  v.  Smith,  1  Conn, 
103,  6  Am.  Dec.  216. 

But  if  we  look  at  the  action  of  ejectment,  on  principle,  and  inquire 
.  what  is  its  object,  it  cannot  be^justained,  on  any  rational  ground.    It  is 

to  recover  possession  of  the  land  in  question ;  and  the  judgment,  if  car- 
ried into  execution,  must  be  followed  by  delivery  of  possession  to  the 


Ch.  1)  MODE  OF  CONVEYANCE  173 

lessor  of  the  plaintiff.  The  purpose  for  which  the  action  is  brought,  is 
not  to  try  Jhe^  mere  abstract  right  to  the  soil,  but  to  obtain  actual  pos^ 
session ;  the  very  thing  to  which  the  plaintiff'  can  have  no  exclusive  or 
private  right.  This  would  be  utterly  inconsistent  with  the  admitted 
public  right;  that  right  consists  in  the  uninterrupted  enjoyment  of  the 
possession;  the  two  rights  are  therefore  incompatible  with  each  other, 
and  cannot  stand  together.  The  lessor  of  the  plaintiff  seeks  specific 
relief,  and  to  be  put  into  the  actual  possession  of  the  land.  The  very 
fruit  of  his  action,  therefore,  if  he  avails  himself  of  it,  will  subject  him 
to  an  indictment  for  a  nuisance;  the  private  right  of  possession  being 
in  direct  hostility  with  the  easement  or  use  to  which  the  public  are  en- 
titled ;  and  as  to  the  plaintiff's  taking  possession  subject  to  the  easement, 
it  is  utterly  impracticable.  It  is  well  said,  by  Mr.  Justice  Smith,  in  the 
case  of  Stiles  v.  Curtis,  that  the  execution  of  a  judgment,  in  such  case, 
involves  as  great  an  inconsistency  as  to  issue  an  habere  facias  posses- 
sionem ^  certain  premises  to  A.,  subject  to  the  possession  of  B.  It  is 
said,  cases  may  exist  where  this  action  ought  to  be  sustained  for  the 
public  benefit,  as  where  erections  are  placed  on  the  highway,  obstruct- 
ing the  public  use.  But  what  benefit  would  result  from  this  to  the  pub- 
lic? It  would  not  remove  the  nuisance.  The  effect  of  a  recovery, 
would  only  be  to  substitute  another  offender  against  the  public  right, 
but  would  not  abate  the  nuisance.  That  must  be  done  by  another  pro- 
ceeding. 

It  is  said,  in  the  case  in  Burrow,  that  an  ejectment  could  be  main- 
tained, because  trespass  would  lie.  But  this  certainly  does  not  follow. 
The  object  and  effect  of  the  recoveries  are  entirely  different.  rThe  one 
is  to  obtain  possession  of  the  land,  which  is  inconsistent  with  the  en- 
joyment of  the  public  right;  an^' the  other  is  to  recover  damages 
merely,  and  not  to  interfere  with  the  possession,  which  is  in  perfect 
harmony  with  the  public  right.  So  also,  if  the  fee  is  supposed  to  re- 
main in  the  original  owner,  cases  may  arise  where  perhaps,  waste,  or  a 
special  action  on  the  case,  may  be  sustained,  for  a  private  injury  to  such 
owner ;  but  these  are  actions  perfectly  consistent  with  the  public  right. 
But  a  recovery  in  an  action  of  ejectment,  if  carried  into  execution,  is 
directly  repugnant  to  the  public  right. 

Upon  the  whole,  the  opinion  of  the  court  is,  that  the  judgment  must 
be  reversed,  and  the  cause  sent  back  with  directions  to  issue  a  venire 
de  novo.    Judgment  reversed. 


174  DERIVATIVE  TITLES  (Pa it  2 

WATERS  V.  PHILADELPHIA. 

(Supreme  Court  of  Pennsylvania,  1904.     208  Pa.  189,  57  Atl.  523.) 

Appeal  from  award  of  jury  of  view.    Before  Biddle,  P.  J. 

The  facts  are  stated  in  the  opinion  of  the  Supreme  Court. 

Verdict  and  judgment  for  plaintiff  for  $3,000.    Defendant  appealed. 

Potter,  J.*  This  was  an  issue  framed  under  an  appeal  from  the 
finding  of  a  road  jury  upon  a  claim  for  damages  caused  by  the  widen- 
ing  of  Walnut  street.  On  the  lot  now  owned  by  the  plaintiff'  at  tlie 
southeast  corner  of  l5th  street  and  Walnut,  a  building  was  erected 
some  thirty-five  or  forty  years  ago  upon  a  line  about  four  feet  from 
the  street  Ime,  and  the  intervening  space  was  left  open  for  use  and  was 
used  by  the  public  as  part^ot  the  sidewalk.  All  the  other  buildings  on 
the  block  were  erected  substantially  on  the  same  line.  On  June  30, 
1892,  an  ordinance  was  passed  authorizing  the  bureau  of  surveys  to 
revise  the  city  plan  so  as  to  make  the  width  of  Walnut  street  conform 
to  the  line  of  the  buildinp-s  erected  there^gm  ;  and  on  January  15,  1894, 
in  pursuance  to  the  ordniance,  the  new  south  line  of  Walnut  street  was 
thus  fixed. 

Plaintiff  purchased  the  property  in  question  in  1898,  and  took  down 
the  oldbuilding  and  erected  a"new  one  upon  the  line  established  in  1894. 
This  practically  coincided  with  the  line  of  the  old  building,  although 
there  is  some  evidence  which  indicates  a  further  recession  of  a  few 
inches.  The  plaintiff  claimed  damages  for  the  value  of  the  entire  foiir 
feet  between  the  original  street  line  and  that  established  in  1894.  The 
city  claimed  that  the  plaintiff'  was  entitled  to  no  damages  whatever, 
averring  that  the  former  owner  had  dedicated  this  four  feet  of  ground 
to  the  use  of  the  public.  The  court  instructed  the  jurv  that  there  was 
jio^ evidence  in  the  case  that  would  iustifv  them  in  finding  thn^  tlipre 
ha^  been  a  dedication  of  the  ground  to  public  use,  and  restricted  the 
jury  to  the  single  question  of  the  amount  of  damages  to  be  awarded. 
In  this  we  think  there  was  error. 

There  is  much  evidence  in  the  case  tending  to  show  that  the  strip  of 
ground  in  question  was  for  many  years  used  as  p^rt  nf  the  sidewalk, 
and  that  the  owner  made  no  use  of  it  which  would  indicate  that  he  re- 
garded it  as  ministering  in  any  wav  to  his  special  benefit.  There  was 
no  door  upon  the  Walnut  street  end  of  the  building  and  no  steps  lead- 
ing to  the  street,  as  the  entrance  was  from  the  15th  street  side.  It  is 
claimed  by  the  city,  and  considerable  evidence  was  offered  tending  to 
show,  that,  during  a  period  of  time  exferir|incr  fnr  many  yeart;  mnre 
than  the  statutory  period  "f  limitations,  the  owner  never  made  any  ob- 
jection to  the  full  and  free  use  of  this  ground  by  the  public  as  part  of 
the  highway,  and  never,  during  that  period,  made  any  claim  of  owner- 
ship therein. 

Where  there  has  been  long  continued  use  of  land  as  a  street  by  the 
public  without  objection  on  the  part  of  the  owner  of  the  soil,  the  jury 


Ch.  1) 


MODE  OP  CONVEYANCE 


175 


may  presume_a_valjci  dedication.  Schenley  v.  Com.,  36  Pa.  29,  59,  78 
Am.  Decr359.  No  parVr^'^^^r  fprmnHty  I'g  rpqnfQitp  tf>  rnnptitute  a  dedi- 
cation upon  the  part  of  the  ownef.  Any  act  which  clearly  indicates  an 
intention  to  dedicate  is  sufficient.  "Proof  of  the  animus  dedicandi  may 
be  by  circumstances,  and  may  rest  in  pais.  One  of  such  circumstances 
which  will  be  considered  eyidence  of  dedication,  is  the  use  of  the  way 
by  the  public,  with  the  knowledge  and  assent  of  the  owner  of  the  soil ; 
and  when  such  use  extends  through  a  long  series  of  years,  the  animus 
dedicandi  is  presumed.  The  reason  of  this  rule  is,  that  when  the  own- 
er of  the  soil  so  long  acquiesces  in  the  using-  the  wny,  havincr  knnwlpdg-p' 
thereof,  he  is  estopped  lo  deny  his  prior  dedication."  Wilson  y.  Sexon, 
2/  Iowa,  15.  It  was  also  said,  in  City  of 'Richmond  y.  Stokes,  31  Grat. 
(Va.)  713:  "Where  streets  and  alleys  haye  been  opened  by  the  owner 
of  the  soil  and  used  by  the  public  with  his  consent  for  years,  a  dedica- 
tion of  the  easement  may  be  presumed,  and  the  continued  and  uninter- 
rupted use  with  the  knowledge  and  acquiescence  of  the  owner  will  jus- 
tify the  presumption  of  a  dedication  to  the  pulilic,  provided  the  use  has 
been  continued  so  long  that  priyate  rights  and  public  conyenience  might 
be  materially  affected  by  an  interruption  of  the  enjoyment.  But  any 
acts  of  ownership  by  the  owners  of  the  soil  would  repel  the  presump- 
t'l^nTZ  ~  ' 

In  State  v.  K.  C,  etc.,  R.  R.  Co.,  45  Iowa,  139,  it  was  pointed  out 
that  in  the  strict  sense  of  the  term  a  highway  cannot  be  established  by 
prescription,  since  there  can  be  no  such  thing  as  a  grant  to  the  public, 
but  common  usage  has  applied  the  term  to  highways  whose  existence  is 
based  upon  long  use  and  occupation. 

There  are  many  cases  holding  that  the  period  required  for  the  stat- 
ute of  limitations  to  bar  the  right  of  the  ovyner  would  from  analogy  be 
sufficient  to  establish  a  presumption  of  dedimtinn  from  lapse  of  time. 
Thus  Knox,  J.,  says,  in  Com.  y.  Cole,  26  Pa.  187:  "The  use  of  the 
ground  by  the  public  as  a  highway  for  more  than  twenty-one  years 
made  it  a  public  road  just  as  effectually  as  though  it  had  originally  been 
laid  out  and  opened  by  the  proper  authorities."  And  in  Schenley  y. 
Com.,  36  Pa.  29,  59  (78  Am.  Dec.  359)  it  is  said :  "The  period  of  twen- 
ty-one years  of  enjoyment  after  which  a  presumption  of  a  grant  is 
made,  is  fixed  fro'T^  nnnl'"'?)^  tr.  tliP  <;f.qtiitp  ^f  limitations . ' ' 

There  is  also  abundant  authority  for  the  proposition  that  the  owner 
of  the  soil  may  be  concluded  by  a  user  by  the  public  for  a  .much  -shor4er 
period  of  time,  when  there  arejother  (j-irrnmst^ncp',  from  whighthe  jn- 
tention  to  dedicate  may  be  inferred.  •  As  in  Pittsburg,  etc.,  Railway 
Co.  V.  Dunn,  56  Pa.  280,  Reed,  J.,  says :  "Eight  years  is  quite  sufficient 
t i me  for  presuming  a  dedication  of  the  way  to  the  public.  In_a  great 
case  which  was  much  contested,  six  years  was  held  sufficient,  11  East, 
^75  (note) ;  and  in  Jaryis  y.  Dean,  3  Bing.  447,  Chief  Justice  Best  said 
'as  it  had  been  used  for  four  or  fiye  years  as  a  public  road,  the  jury 
were  warranted  in  presuming  that  it  was  used  with  the  full  assent  of 
the  owners  of  the  soil.'  "    But  where  it  is  obyious  that  a  space  has  been 


Xf 


r 


t/jf7    ^  -^ 


176  DERIVATIVE  TITLES  (Part  '2 


(s 


left  open  for  the  accommodation  of  the  owner  and  not  of  the  public  the 
presumption  of  dedication  does  not  arise.    Gowen  v.  Phila.  Exchange 
P-o.,  5  Watts  &  S.  141,  40  Am.  Dec.  489.    And  where  the  owner  of  jand 
sets  his  fence  back  from  the  highway  for  his  own  convenience  and  uses. 
I  the  mtervenmg  space  until  his  death  for  private  purposes,"the  munici- 
/  pal  authorities  cannot  restrain  a  subsequent  owner  of  the  property, 
'even  years  after  the  death  of  the  former  owner,  from  setting  back  the 
fence  to  the  old  line  and  enclosing  the  intervening  space :    Griffin's  Ap- 
peal, 109  Pa.  150.    But  there  the  use  of  the  land  by  the  public  was  sim- 
ply by  sufferance  of  the  owner:  in  that  case  Justice  Green  said  (page 
/    -//.^m    ^  155):    ^'Dedication  is  a  matter  of  intention,  and  when  clearly  proved, 
OA*^^i^^^^     /,  it  is  as  complete  m  one  dav  as  in  twenty-one  years.    Where  there  is  no 
^j3£;;^<A/<*^    opposing  proof,  long  continued  use  by  the  public  is  evidence  of  an  in- 
■''^^  tention  to  dedicate,  but  it  is  by  no  means  conclusive  and  always  yields 

<f  to  contrary  proof  of  a  satisfactory  character."    In  Weiss  v.  So.  Bethle- 

/  hem  Borough,  136  Pa.  294,  20  Atl.  801,  the  question  of  the  intention  to 

dedicate  was  submitted  to  the  jury,  and  they  were  instructed  that  a 
mere  permissive  use  by  the  public  of  a  piece  of  ground  left  open  by  the 
owner  in  front  of  his  property,  and  used  by  him  in  his  own  business 
and  for  his  own  convenience,  was  not  a  dedication  to  public  use  and 
conferred  no  right  upon  the  public  as  against  the  owner.  The  jury 
,  ^were  further  told  that  the  question  whether  or  not  there  was  a  dedica- 
tion depended  upon  the  tacts  m  evidence  aajo  the  opening  of  the  land, 
the  character  of  the  use  by  the  public,  the  character  of  the  property, 
Jix'^  the  nature  of  the  land  and  its  snrrmir]dincrs^  ^UlLli'  ^^^  other  nrnim- 
7j^^*^    ^  s^nces  in  the  cjise^.  and  if  they  found  that  there  was ^ah" iiil:ehtion  to 

•yv*|  '         dedicate  on  the  part  of  the  owner,  they  would  be  warranted  in  finding 
"Yl        1  that  there  was  an  actual  dedication,  and  in  that  event  their  verdict 

V  should  be  in  favor  of  the  defendant. 

A  general  statement  of  the  doctrine  applicable  to  this  case  is  found 
in  Dillon,  ^Municipal  Corporations  (4th  Ed.)  §  639,  as  follows :  "A 
street  may  be  widened  by  the  dedication  of  a  strip  of  land  adjoining  it 
and  such  dedication  may  be  shown  by  long  use  by  the  public  and  ac- 
quiescence in  such  by  the  owner.  And  if  the  street  has  been  long  used 
and  built  upon  to  a  particular  line,  which  has  been  acquiesced  in  by  the 
adjoining  owners,  who  have  built  and  made  improvements  to  corre- 
spond with  siich  line,  such  owners  and  the  public  acquire  rights  in  con- 
sequence and  one  or  more  of  such  owners  cannot  afterwards  change 
or  narrow  the  street  by  showing  that  the  original  survey  made  the  line 
of  the  street  different  from  that  which  "had  been  long  regarded,  built 
upon  and  acquiesced  in  as  the  line  of  the  street." 

In  the  present  case,  we  think  the  question  of  dedication  should  have 

been  submitted  to  tne  jury.     The  evidence  showed  a  long  use^oT  the 

strip  of  ground  in  question  by  the  public,  as  part  of  the  pavement. 

_        Whether  or  not  this  was  simply  permissive,  by  the  owner,  and  was  ac- 

'        companied  by  a  course  of  conduct  which  would  indicate  a  continued 

claim  of  ownership,  was  for  tlie  jury  to  determine.    Whether  the  own- 


Ch.  1)  MODE  OF  CONVEYANCE  177 

er  of  tfie_soil_gave  up  the  n.'^p  nf  the  strip  to  tjip  pn1-»1iV^  wi'tlmm-  qimiifj- 
cation,  or  \vlietherjie  ever  attempted  in  any  way  to  limit  the  rights  of 
t^  public  therein..were  questions  of  fact."  The  court  should  have  given 
to  the  jury  an  adequate  definition  of  what  facts  or  circumstances  would 
amount  to  a  legal  dedication  and  it  would  then  have  been  for  them  to 
find  from  the  evidence  and  all  the  circumstances  of  the  case,  tlie  ex- 
istence of  facts  to  fit  the  definition. 

The  fifth,  sixth  and  seventh  assignments  of  error  are  sustained. 

The  judgment  is  reversed  and  a  venire  facias  de  novo  is  awarded.® 


Q^U^^Uh-^^4^ 


o-i^r" 


-^^     WORMLEY  V.  WORMLEY.     J^     J- 

(Supreme  Court  of  Illinois,  1904.     207  111.  411,  69  N.  E.  865,  3  L.  R.  A. 

[N.  S.]  481.) 

This  is  a  Wll  jn  chancery,  filed  in  the  circuit  court  of  Kendall  coun- 
ty on  June  10,  1899,  by  the  plaintiff  in  error,  George  D.  Wormley  and 
all  of  the  defendants  in  error  except  John  T,  Wormley,  (said  de- 
fendants in  error,  except  John  T.  Wormley,  being  ten  in  number,) 
as  complainants,  against  defendant  in  error,  John  T.  Wormley,  as  de- 
fendant. A  general  demurrer  was  filed  to  the  bill.  On  January  4, 
1901,  the  demurrer  was_  sustained.  Subsequently  on  April  3,  1901, 
the  bill  was  dismissed  for  want  of  equity,  and  the  costs  were  taxed 
against  the  complainants  below,  and  it  was  ordered  that  the  defend- 

9  Not  uncommonly  it  is  snid  that  an  adverse  use  of  Innd  for  highway  pur-       /) 
poses  oy  rnp  nnhiif  rnr  thp^ppiinrl  of  flip  statute  of  liinitatioiis  will  result  In     Xd- 
a  highway  being  created  |>y  "prpspT-i^fti^n^     See  Jennings  \.  Tisbury,  5  Gray 
('jnass.)  7:j  (l!li55').     Prescription  in  this  connection  can  hardly  have  quite  the 
same  meaning  as  in  the  case  of  the  creation  of  pi-ivate  easements,  at  least 
in  so  far  as  it  implies  a  supposed  lost  grant.     In  this  connection  the  pre-  ^4- 

sumption  is  of  ii  past  dedication.     Thomas  v.  FordTHSTild.  34^,"  52  Am.  Hep. 

oisnssoi: "~  ^ 

There  may  be  statutes  directly  applicable  to  the  situation.  In  California,  (jgS  "/  /^T\ 
for  instance,  there  is  a  statute  that  "all  roads  used  as  such  fcr  a  period  of  ^—"^'^iV.  \J^ 
more  thiin  \\\c  vears  are  highwavsT    This  statute  was  construed  as  in  "the  v     ^"^*' 

nature  of  a  statute  of  limitations.     Bolger  v.  Foss,  65  Cal.  250,  3  Pac.  871     ^'K'{2^^  ^ 
(1884).     There  is  a  similar  statute  in  Michigan,  the  period  of  time  specified  ^-^^-r*  ^ 

being  ten  years.     2  Comp.  Laws,   §  4061.    J.'he  statute,   however,   docs  not  .  — 

2J2I2liLto_a_use^_^^vhich  is  merely  permissive.  ^l^Hciney  v.  Township  of  Sodus,  cJ     ^"t/C^^^ 

131  Mich.  510,  91  N.  W.  745,"  59  L.  R.  A.  287' (1902).  y^T^ 

The  owner  of  a  tract  of  land  in  the  outskirts  of  a  city  had  the  same  plat- 
ted into  blocks,  lots,  and  streets.  A  map  was  made,  showing  the  arrange- 
ment, and  lots  were  sold  and  conveyed  with  reference  to  the  map.  Some 
of  the  streets  were  opened  and  used.  In  proceedings  by  the  city  to  have 
opened  certain  other  streets  shown  on  the  map  the  owners  of  lots  abutting 
upon  such  streets  claim  compensation.  Are  they  entitled  to  any?  See  Quick- 
sail  V.  PhiladelDhia,  177  Pa.  301,  35  Atl.  609  (1896);  HaiTington  v.  Man- 
chester, 76  N.  li.  347,  82  Atl.  716  (1912) ;  Mayor  and  City  Council  of  Balti- 
more V.  Frick.  82  Md.  77,  33  Atl.  435  (1895) ;  Reis  v.  City  of  New  York,  188 
N.  Y.  58,  80  N.  E.  573  (1907);  State  v.  Hamilton,  109  Tenu.  276,  70  S.  W.  619 
(1902). 

Aig.Pkop. — 12 


d 


v4 


,''f 


178  DERIVATIVE  TITLES  (Part  2 

ant  below  have  execution  therefor.  The  present  writ  of  error  is  sued 
out  for  the  purpose  of  reviewing  the  decree,  so  entered,  which  dis- 
missed the  bill  for  want  of  equity.  /?/?  ^•.,/,/ 
In  the  bill,  the  orators  therein  bein£_  plaintiff  in  error,  Gggrge  D, 
Wormley,  and  ten  other  persons,  who  are  defendants  in  error  herein 
wTth  the  defendant  in  error,  John  T.  Wormley,  alleged  that  in  Feb-_ 
ruary,  1839,  and  prior  thereto  and  thereafter^one  John  H.  Wormley 
was  the  owner  in  fee  of  a  certain  tract  of  eighty  acres  of  land  in  said 
countv.  and  also  was  the  owner  in  fee  of  other  lands  particularly  de- 
scribed  in  the  bill;  that  such  other  lands  so  described  constituted 
in  all  one-half  acre;  that  said  one-half  acre  of  land  so  described 
was  generally  known  as  the  "Wormley  cemetery,"  and  had  been  so 
known  and  recognized  ever  since  the  year  1839;  that,  in  February 
and  June  of  1839,  two  of  John  H.  Wormley 's  relatives  were  buried 
in  said  one-half  acre  of  land,  that  in  1845  a  brother-in-law  of  his 
was  biiried  on  said  half  acre;  that  in  1845  John  H.  Wormley,  be- 
ing the  owner  of  said  one-half  acre,  and  of  other  lands  about  the 
same  whereon  he  resided,  dedicated  by  words  and  acts  snid  half  nrxe 
for  a  burying  ground  for  the  uses  of  the  Wormley  familv.  and  their 
relatives :  Jhat  ever  since  J.839  said  half  acre  has  been  used  by  the 
Wormley  family,  ^jldj^he  neigjjhoriiptjd,  for  the  uses  of  sepulture; 
that,  since  the  year  1845^  there  have  been  buried  on  said  dedicated 
land  many  persons,  the  names  of  about  thirty  of  whom  are  mentioned 
in  the  bill,  being  of  the  Wormley  family,  and  relatives  of  orators; 
that  monuments  have  been  erected  over  the  graves  of  many  of  saj.d 
d^ecedents,  many  of  them  by  orators ;  that  orators,  and  other  relatives 
of  said  decedents,  have  continued  to  protect  the  remains  of  those 
buried  in  said  cemetery,  and  to  preserve  the  identity  and  memory 
of  their  said  relatives ;  that  orators  have  not  in  any  manner  neglected 
to  preserve  the  monuments,  erected  to  indicate  the  identity  and  pre- 
serve the  memory  of  their  said  rp1ativp<;  nr  trt  giVp  anH  rnntmiie  tO 
said  cemetery  the  character  and  name  of  a  burial  ground,  except 
so  far  as  they  have  been  prevented  by  John_  1^.  Wormley,  the^de^ejid- 
antj  that  ttiere  were~!hefi,  at  l:he  time^T  filing  the  bill,  in  said  ceme- 
tery more  than  eighty  graves,  cared  for  and  kept  by  orators,  and  other 
relatives  of  the  deceased;  tliat  John  H.  Wormley  settled  in  Oswego, 
in  Kendall  county,  several  years  before  1839.  and  resided  prf  ,and 
owned  the  farm  on  which  said  cemetery  is  located,  from  the  time  of 
such  settlement  until  the  time  of  his  death  about  the  year  1890;  that 
during  all  that  time  he  recognized  said  cemetery,  as  the  burial  ground 
of  his  relatives  and  the  neighborhood,  and  assisted  in  maintaininp- 
the  same  as  such;^  that,  during  his  lifetime,  he.  with  Qtlifr  relatives 
qt  those  buried  m  said  cemetery,  caused  to  be  erected  and  maintained 
a  suitable  fence,  enclosing  said  half  acre  dedicated  by  hinT~as  a  ceme- 
tery; that  such  fence  was  kept  up  by  orators,  and  other  relatives  of  the 
deceased,  until  prevented  by  the  defendant  in  a  violent  and  unlawful 
manner;    that,  upon  the  death  of  John  H.  Wormley.  the  defendant. 


Ch.  1)  MODE  OF  CONVEYANCE  179 

Tohn  T.  Wormley.^s  his  son  and  heir,  came  into  the  ownership  and 
possession  of  the  farm,  on  which  said  cemetery  is  located,  and  still 
owns  and  possesses  tlie  same;  that,  for  many  years  after  his  coming 
into  such  ownership  of  said  farm,  he  recognized  the  said  cemetery 
as  the  burying  ground  of  and  for  the  Wormley  family  and  neighbor- 
hood, and  that  the  sani^e  had  been  dedicated  by  his  father,  John  H. 
Wormley,  _for  such  purposes ;  that  said  cemetery  is  located  on  said 
farm  on  the  line  of  the  Aurora  and  Oswego  wagon  road,  and  ingress 
and  egress  in  and  out  of  said  cemetery  can  be  had  without  in  any  way 
interfering  with,  or  trespassing  on,  the  lands  or  premises  of  the  de- 
fendant, John  T.  Wormley  J  that  lately  said  defendant  has  torn  down 
the  fence,  surrounding  said  cemetery,  and  is  pasturing  cattle,  horses, 
and  swine  therein ;  that  he  has  defaced  and  is  defacing,  the  monuments 
and  desecrating  the  graves  in  said  cemetery :  that  he  threatens  to 
shoot  and  kill  any  persons,  who  attempt  tofence  said  cemetery,  or  care 
for  the  monumPTitt;  and  graves  therein ;  that  he  threatens  to  enter  and 
remove  the  monuments  therein,  and  to  plow  and  cultivate  the  land 
therein ;  that,  by  threats  and  force,  he  prevents  orators,  and  other  rel- 
atives of  the  buried,  from  replacing  the  fence  or  caring  for  the  mon- 
uments and  graves  in  said  cemetery ;  that  orators  fear  that  he  will 
carry  jTJs_tlireats  into  p\'Pl;'}^t^an^  nnless  re!=;l;rnined  by  the  orderof  the 
court.  The  bill  thereupon  prays  that  John  T.  Wormley  may  be  re- 
strained by  injunction  from  defacing,  or  in  any  manner  interfering 
with,  the  monuments  and  graves  in  said  cemetery,  or  with  orators, 
or  any  one  of  them,  in  fencing  said  cemetery  and  preserving  the  mon- 
uments and  caring  for  the  graves  therein,  or  in  any  way  interfering 
with  the  fence  or  fences  of  said  cemetery,  now  or  hereafter  erected ; 
that.,  upon_a^nal  he.nrmv^^  it  may  be  ordered  and  decreed  that  said 
described  one-half  acre  of  land,  known  as  the  "Wormley  cemetery," 
has  been  dedicated,  to  the  Wormley  family,  and  their  relatives,  and 
neighborhood  contiguous  thereto,  as  a  burying  ground;  that  said  in- 
j  unction  may  be  made  perpetual,  and  orators  may  have  such  other 
relief  as  equity  m^y  require,  etc. 

MagrudEr,  J.  First — It  is  well  settled  in  the  United  States,  that 
cemeteries  are  among  the  purposes,  for  which  land  may  be  dedicated ; 
and  it  is  held  that,  upon  such  dcdicaiiun,  the  owner  is  precluded  trom 
exercising  his  former  rights  over  the  land.  5  Am.  &  Erig.  Ency.  of 
Law  (2d  Ed.)  p.  784,  and  cases  referred  to  in  notes. 

It  is  also  well  settled,  that  a  court  of  equity  will  enjoin  the  owner 
o^^land  from  defacing,  or  meddling  with,  graves  on  land,  dedicated  to 
the  public  for  burial  purposes,  at  the  suit  of  any  party.,  having  de- 
ceased relatives  or  friends  buried  therein  Beatty  v.  Kurtz,  2  Pet. 
585,  7  L.  Ed.  521;  Davidson  v.  Reed,  111  111.  167,  53  Am.  Rep.  613. 
In  the  case  of  Beatty  v.  Kurtz,  supra,  the  Supreme  Court  of  the  United 
States,  in  speaking  of  property  consecrated  to  cemetery  purposes,  held 
that  the  removal  of  the  memorials,  erected  by  piety  or  love  to  the 
memory  of  the  good,  are  such  acts  as  can  not  be  "redressed  by  the 


180  DERIVATIVE  TITLES  (Part  2 

ordinary  process  of  law.  The  remedy  must  be  sought,  if  at  all,  in  the 
protecting  power  of  a  court  of  chancery;  operatmg  by  its  injunction 
to  "preserve  the  repose  of  the  ashes  of  tlie  dead,  and  the  religious  sensi- 
bilities of  the  livin<^."  In  Davidson  v.  Reed,  supra,  two  persons,  res- 
idents in  the  neighborhood  of  a  public  burying  ground,  having  friends 
buried  there,  filed  a  bill  to  enjoin  the  party  owning  the  tract  of  land, 
on  which  it  was  located,  from  defacing  the  grave,  and  to  preserve  the 
ground  for  the  public  use  for  burial  purposes ;  and  it  was  there  held 
that  they  could  maintain  the  bill  in  their  names,  for  the  benefit  of 
themselves,  as  well  as  if  all  others  directly  interested  had  joined. 

It  is  also  well  settled,  that  no  particular  form  or  ceremony  is  nec- 
^  essary  to  dedicate  land  for  the  purposes  of  a  cemetery.     All  that  need 

^  be  shown  to  constitute  such  dedication  is  the  assent  of  the  owner,  and 

the  fact  that  the  land  is  used  for  the  public  purposes,  intended  by  the 
appropriation.  Staking  off  ground  as  a  cemetery  and  allowing  burials 
.  therein  amounts  to  a  dedication.  An  express  setting  apart  of  land"  for"" 
"such  a  pUrpose  by  the  owner  may  constitute  a  dedication  of  the  land 
as  a  burial  ground  or  cemetery.  5  Am.  &  Eng.  Ency.  of  Law  (2d 
Ed.)  p.  784;  9  Id.  p.  28;  Hagaman  v.  Dittmar,  24  Kan.  42;  Hayes 
V.  Houke,  45  Kan.  466,  25  Pac.  860.  It  has  been  held  that  the  noto- 
rious use  of  property  for  twenty  years  for  burial  p'^^'P'"'!^!^  wi*^^"'  "^^ 
acquiescence  of  the  owner  affords  presumptive  evidence  of  its  dedi- 
cation tor  such  purposes.  Boyce  v.  Kalbaugh,  47  JMd.  334,  28  Am. 
Rep.  464. 

In  Davidson  v.  Reed,  supra,  this  court  held  that  a  dedication  of 
land  to  the  public  for  any  public  use  may  be  shown  by  grant,  by  user, 
or  by  the  acts  and  declarations  of  the  owner,  coupled  with  evidence 
of  acceptance  by  the  public;  and  that,  where  there  was  evidence  of 
an  intent  to  dedicate,  no  particular  form  or  ceremony  is  necessary. 
In  Davidson  v.  Reed,  supra,  it  appeared  that  the  owner  of  a  quarter 
section  of  land  as  early  as  1844  buried  a  child  in  a  comer  thereof,  since 
which  time  the  same  had  always  been  used  by  the  people  of  the  neigh- 
borhood as  a  public  burying  place,  and  the  declarations  of  such  owner 
showed  an  intent  to  devote  the  land  to  such  use,  and  the  subsequent 
owners  of  the  quarter  section  of  land  made  no  objection  to  such  use, 
but  recognized  the  same  as  a  public  burial  place ;  and  it  was  there 
held  that  these  facts  were  sufficient  to  show  a  dedication  of  the  land 
so  used  to  the  public  for  a  place  for  the  interment  of  the  dead. 

In  Alden  Coal  Co.  v.  Challis,  200  111.  222,  65  N.  E.  665,  we  have 
■  recently  hel^  that  the  Statute  of  Frauds  does  not  apply  to  dedication  of 
ground  to  the  public,  but  that  the  same  may  be  evidenced  by  acts  and 
declarations  without  any  writing,  and  that  no  particular  form  is  nec- 
essary to  the  validity  of  the  dedication ,  it  being  properlv  a  question 
of  intention,  and  that  a  dedication  mav  be  established  by  parol.  See 
also  Cincinnati  v.  White,  6  Pet.  440,  8  L.  Ed.  452.  In  Alden  Coal  Co. 
V.  Challis,  supra,  we  also  held  that  the  acceptance  necessary  to  com- 
plete such  dedication  may  be  implied  from  acts  and  from  user;   and 


Ch.  1)  MODE  OF   CONVEYANCE  181 

that,  wlien  the  dedication  is  beneficial  or  greatly  convenient  or  nprp<;- 
sary  to  the  public,  an  "acceptance  will  be  implied  from  slight  ciixum- 
stancgs^ 

By  comparing  the  allegations  of  the  bill  in  the  case  at  bar,  as  the 
same  are  set  forth  in  the  statement  preceding  this  opinion,  with  the 
allegations  of  the  bill,  passed  upon  by  this  court  in  Davidson  v.  Reed, 
supra,  it  will  be  found  that  the  two  cases  correspond  in  all  essential 
particulars.     It  appears  from  the  allegations  of  the  bill  in  the  present  J^ 

case  that,  during  the  lifetirrie  of  John  H.  Wormley,  the  original  owner  /' 

of  the  land  dedicated  for  the  purposes  of  the  Wormley  cemetery,  _he 
recognized  the  half  acre  of  ground  here  in  question  as  a  cemetery  for  ^ I 
a^period  of  about  fl f ty^ti£__^ars",  to-wit,  trom  l8>^9  to  his~5eath  in 
1^90.  During  that  time  he  not  only  buried  his  own  relatives  upon  this 
half  acre,  and  permitted  others  to  bury  their  dead  there,  but  he  indi- 
cated his- intention  tojmake  suchdedication.  and  to  continue  it,  by  pos- 
itive and  open  acts.  He,  with  others  who  buried  their  dead  upon  the 
half  acre,  caused  to  be  erected  and  maintained  a  suitable  fence,  en- 
closing such  half  acre.  He  permitted  the  persons,  who  buried  their 
dead  there,  to  erect  monuments  over  them,  and  to  protect  and  preserve 
the  identity  of  the  remains  buried  there.  The  bill  alleges  that  more 
than  eighty  persons  have  been  buried  in  the  cemetery,  and  that  their 
graves  have  been  cared  for  and  kept  up  by  their  relatives.  John  H. 
Wormley  died  in  1890,  and  the  defendant,  John  T.  Wormley,  his  son, 
for  more  than  ten  years  after  that  date,  recognized  the  half  acre  as 
a  cemetery,  and  did  nothing  to  interfere  with  its  use  as  such,  until 
about  the  time  the  present  bill  was  filed.  The  bill  also  alleges  that 
he  has  committed  acts  of  depredation  upon  the  cemetery  by  tearing 
down  the  fence  surrounding  it,  and  by  pasturing  his  horses  and  cat- 
tle and  swine  therein ;  and  also  that  he  not  only  threatens  to  kill  per- 
sons, who  attempt  to  re-build  the  fence  around  the  cemetery,  or  care 
for  the  monuments  and  graves  therein,  but  also  threatens  to  remove 
the  monuments  erected  to  commemorate  the  dead,  and  to  plow  and 
cultivate  the  land  therein.  The  demurrer,  filed  by  the  defendant,  ad- 
UTJts  all  these  allegations  of  the  bill  to  be  true..  When  the  land  de- 
scended to  John  T.  Wormley  from  his  father,  he  inherited  it  subject 
to  the  rights,  which  had  been  acquired  in  this  half  acre  as*  a  cemetery. 
The  assent  of  his  father  to  its  use  for  such  purposes  is  clearly  averred 
in  the  bill,  and  it  is  also  alleged  therein,  and  shown,  that  it  was  ac- 
cepted by  the  parties  using  it  for  the  purposes,  for  which  it  was  ded- 
icated by  the  owner. 

Under  the  facts  and  under  the  authorities  applicable  thereto,  we 
are  of  the  opinion  that  the  court  below  erred  in  sustaining  the  de- 
rm]rrpr_tn  the  biUr  ^nd_that  such  demurrer  should  have  been  pver- 
ruled.^" 

10  See  Colbert  v.  Shepherd,  S9  Va.  401,  16  S.  E.  246  (1892). 


s 


182  DERIVATIVE  TITLES  (Part  2 

CASSIDY  V.  SULLIVAN. 

(Supreme  Court  of  Nebraska,  1906.    75  Neb.  847,  106  N.  W.  1027.) 

Albert,  C.  This  is  an  appeal  from  a  decree  enjoinino^  the  defend- 
ants from  maintaining  a  fence  on  an  alleged  public  road.  The  defend- 
ant  Babcock  owns  the  southwest  quarter  of  the  nortTTu^est  quarter  of 
a  certain  section  of  land,  and  his  codefendant  owns  the  southeast 
quarter  of  the  northeast  quarter  of  the  section  adjoining  on  the  west. 
The  road  extends  north  and  south  on  the  section  line  between  the 
two  forty-acre  tracts.  That  the  defgndarga,  a  short  time  before  the 
suit  was  commenced,  erected  a  fence  on  the  road  is  not  disputed ;  the 
only  controversy  being  the  sufficiency  of  the  evidence  to  show  the  ex- 
istence of  a  public  road.  That  the  county  board  never  made  any  or- 
der for  the  opening  of  the  road  is  conceded.  It  does  appear,  however, 
that  many  years  ago  the  county  board  entered  an  order  declaring  all 
section  lines-  within  tlie  county  public  roads.  But  as  this  amounted 
to  a  reiteration  oi  section  46,  chapter  78,  Compiled  Statutes  1905  (Ann. 
St.  6049),  it  was  mere  brutum  fulmen,  and,  of  itself,  has  no  bearing 
on  the  question  at  issue. 

One  contention  of  the  plaintiff  is  that  the  alleged  road  is  a  high- 
■  ...  — .  — ■  1  —    * 

way  by  dedication.  The  evidence  seems  to  bear  out  this  contention. 
It  appears  that  for  many  years  the  travel  to  and  from  the  Black 
Hills  country  was  along  trails  in  the  vicinity  of  this  road.  It  does 
not  appear  to  have  been  confined  to  any  particular  track,  and  as  the 
county  was  largely  unsettled  section  lines  were  di«;rporar£Wj  Although 
it  was  denied  by  the  defendants,  it  sufficiently  appears  tliat^aijiLDSt 
20  years  ago  the  defendant  Babcock  and  one  through  whom  the  other 
defendant  traces  his  title,  and  who  then  owned  the  Sullivan  forty, 
forthe  purpose  6i  inducing  the  public  travel  to  follow  the  section  line 
between  their  respective  tracts,  built  fences  and  planted  trees  on 
their  respective  sides  of  the  section  line,  leaving  a  space  about  66  feet 
wide  for  public  travel,  and  that  thereafter,  until  about  the  time  of  the 
commencement  of  this  suit,  the  travel  was  confined  to  that  space, 
which  has  ever  since  been  used  by  the  public  as  a  highway.^  Snrh 
use  has  been»uninterrupted,  save  that  about  a  year  before  this  suit  was 
begun  one  of  the  defendants  placed  a  fence  on  the  road,  but  was  direct- 
ed to  remove  it  by  the  county  attorney,  and  did  so.  It  should  be  re- 
marked, however,  that  there  is  evidence  tending  to  show  that  the  use 
of  the  easement  was  interrupted  several  years  ago  by  a  fence  which 
was  maintained  for  some  time.  But  the  evidence  on  this  point  is 
conflicting,  and  we  are  not  prepared  to  say  that  a  finding  against  the 
defendants  thereon  is  not  sustained  by  sufficient  evidence.  Taken  in 
its  entirety  the  evidence  satisfies  us  that  the  owners  of  the  land,  more 
than  15  years  ago,  dedicated  that  portion  now  claimed  as  a  public_jx>ad 
to  the  public,  and  the  public  at  once  accepted  the  grant,  and,  practi- 
cally speaking,  have  been  in  the  uninterrupted  enjoyment  thereof  ever 


it 


Ch.  1)  MODE  OF  CONVEYANCE  183 

since.  It  is  true,  there  is  no  evidence  that  the  public  authorities  ever 
authorize^  any  work  on  the  road,  or  did  any  act  indicating  an  accept- 
ance of  the  grant.  But  a  dedication,  in  order  to  become  binding;  upon 
the  dedicator  orjijs^  privies  in  estate,  need  not  be  accepted  by  the  pub- 
lic_autlK)rities,  butjiiavJpejL^ceuted  b^^he  general^  ixiblic^    The  general  *= — 

public  accepts,  as  in  this  instance,  by  entermg  upon  the  land  and  en-  ^^•'^C^^J^jU*^ 
joying  tl)p  privil^cTp   nffered.   in  other  words,   by   user.      Streeter  v.         yiL'UyO, 
Stalnaker,  61  Neb.  205,  85  N.  W.  47;    Attorney  General  v.  Abbott, 
154  Mass.  Z2Z,  28  N.  E.  346,  13  L.  R.  A.  251 ;   Rees  v.  City  of  Chi- 
cago, 38  111.  Z22\   Alden  Coal  Co.  v.  Challis,  200  111.  222,  65  N.  E. 
665. 

Considerable  stress  is  laid  on  the  fact  that  the  road  in  question 
is  connected  with  no  public  road  at  the  south,  and  that  it  is  some  80 
rods  from  the  north  line  of  the  defendants'  lands  to  a  public  road  with 
wliich  this  road  would  connect  at  the  north ;  in  other  words,  that  this 
rpad  is  disconnected  from  all  other  public  roads.  In  view  of  the  entire 
evidence,  th-lt  ^^^^  '"'^'^  "'"^  '^pp''inLgignificance.  The  travel  from  other 
public  roads  to  this  road  is  over  private  property  and  with  the  permis- 
sion of  the  owners,  who,  unlike  the  defendants,  are  not  shown  to 
have  dedicated  a  right  of  way  for  the  use  of  the  public.  When  such 
permission  is  withdrawn,  if  the  travel  over  such  lands  is  merely  per- 
missive, the  authorities  may  take  the  proper  steps  to  establish  highways 
connecting  with  this  road,  or,  if  the  road  is  not  required,  the  proper 
steps  may  be  taken  to  relieve  the  defendants  of  the  burden  of  the 
easement.  But  that  has  nothing  to  do  with  this  case.  The  evidence 
shgws  that  the  road  is  a  public  highway,  and  so  long  as  it  remains 
such  the  detcndants  have  no  right  to  obstruct  it;, 

It  is  recommended  that  the  decree  of  the  district  court  be  affirmed. 

DuFFiE  and  Jackson,  CC,  concur. 

By  the  Court  :  For  the  reasons  stated  in  the  foregoing  opinion,  the 
decree  of  the  district  court  is  affiriTied. 

»  DOWNING  V.  COATESVILLE  BOROUGH. 

(Supreme  Court  of  Penn.sylvania,  190G.    Iil4  Pa.  291,  63  Atl.  696.) 

Trespass  to  recover  damages  for  personaHnjurics.  Before  Hemp- 
hill, RjT  ^"~ ~'   ' 

From  the  record  it  appeared  that  plaintiff  was  Injured  by  falling 
in  a  hole  on  a  sidewalk  in  the  borough  of  Coatesville.  There  was  evi- 
dence that  the  portion  of  the  street  in  which  the  hole  was  located 
had  been  thrown  open  to  public  use  by  a  former  owner  of  an  adjoin- 
ing property,  but  there  was  no  evidence  that  the  strip  in  question  had 
been  accepted  as  a  public  street  by  the  borough.  • 

The  court  entered  a  compulsory  nonsuit  which  it  subsequently  re- 
fused to  take  off. 

Error  assigned  was  refusal  to  take  off  nonsuit. 


184  DERIVATIVE  TITLES  (Part  2 

P^R  Curiam.  The  learned  judge  below  conceding  that  throwing 
open  a  strip  of  his  lot  as  a  part  of  a  street  to  the  public  for^  number 
of  years,  rnay  amount  to  dedication  to  public  use  as  against  the  owner, 
nevertheless  states  accurately  the  rule  that  such  action  by  the  owner 
>^  cannot  of  itself  make  the  land  part  of  the  street  so  as  to  bind  the  mu- 

nicipality. Someactofaccept^ce  on  the  part  of  the  municipality 
must  be  shown  beToreiT'caii  be  held  liable  for  failure  to  keep  in  re- 
pair, etc.,  citing  In  re  Alley  in  Pittsburg,  104  Pa.  622 ;  Com.  v.  Moore- 
head,  118  Pa.  344,  12  Atl.  424,  4  Am.  St.  Rep.  599,  and  Steel  v.  Bor- 
ough of  Huntingdon,  191  Pa.  627,  43  Atl.  398. 

Applying  this  rule  to  the  facts  before  him  the  judge  said:  '^ 
our_^case  there  was  no  evidence  whatever  of  the  acceptance  of  this  side- 
walk by  the  borough  by  either  act  or  deed ;  it  apparently  was  thrown 
open  to  the  public  street  by  Miss  Perkins  tor  the  r^nv^^^'^nrf  ?"'^ 
accommodation  of  her  tenants,  for  on  her  property  immediately  north 
wHere  she  resides,  she  still  retains  her  fence  along  the  eastern  side  of 
the  roadway." 

Tliis  amply  sustains  the  nonsuit.    Judgment  affirmed.^* 


OGLE  V.  CITY  OF  CUMBERLAND. 

(Court  of  Appeals  of  Maryland,  1899.    90  Md.  59,  44  Atl.  1015.) 

ScHMucKER,  J.  This  case  was  instituted  by  the  appellant  to  re- 
cover damages  from  the  city  of  Cumberland  for  personal  injuries  sus- 
tained  by  him  from  falling  into  a  ditch  or  sewer  at  the  point  wherTit 
crossed  a  road  which  he  contends  was  a  public  street  of  tliat  city.  The 
facts  ot  the  case  are  substantially  as  follows : 

Prior  to  the  year  1887  persons  and  vehicles  having  occasion  to  pass 
in  either  direction  between  Creek  street,  in  the  city  of  Cumberland, 
and  the  basin  of  the  Chesapeake  &  Ohio  Canal,  were  in  the  habit  of 
crossing  in  a  nsarly  direct  line  over  the  land  of  the  canal  company  ly- 
ing between  the  basin  and  the  corner  of  Creek  and  Canal  streets- 
Early  in  1887  the  West  Virginia  Railroad  Company  acquired  this  land 
from  the  canal  company  by  condemnation,  and  erected  trestles  and 
other  structures  upon  it,  which  prevented  its  use  as  a  roadway,  and 
thus  made  it  necessary  to  provide  a  new  way  of  access  to  the  canal  ba- 
sin from  the  corner  of  Creek  and  Canal  streets.  In  the  condemnation 
proceedings  by  which  the  railroad  company  acquired  this  land,  it  was 
agreed  in  the  presence  of  the  jury,  and  set  forth  in  the  return  of  the  in- 
quisition, that  another  road,  24  feet  wide,  extending  over  the  condemned 

11  In  King  v.  Leake,  5  B.  &  Ad.  469  (1833),  a  parish  was  held  properly  con- 
victed under  an.  indictment  for  the  nonrepair  of  a  road,  though  there  had 
been  no  acceptance  beyond  the  public  use  thereof.  The  Highway  Act  of  1835 
(5  &  6  Wm.  IV,  c.  50,  §  23),  however,  prevents  the  liability  of  the  parish  to 
repair  from  arising  until  assent  has  been  given  as  prescribed.  See  Cabab^  v. 
Walton  D.  C,  [1914]  A.  C.  102. 


Ch.  1)  MODE   OF   CONVEYANCE  185 

land  from  Creek  street  near  its  intersection  with  Canal  street  to  the  ba- 
sin, should  be  "kept  open  for  the  use  of  the  canal  and  the  public  for 
passing  for  all  purposes  for  which  a  public  road  is  commonly  used  to 
and  between  Creek  street  and  the  canal."  ■  This  new  road  crossed  the 
railroad  track  by  passing  under  the  trestle  which  supported  the  track, 
and  just  before  passing  under  the  trestle  the  road  crossed  the  ditch  or 
sewer  into  which  the  appellant  fell  when  he  was  injured.  The  appellant 
kept  a  saloon  in  a  house  near  the  basin,  which  he  rented  from  the  canal 
company!  He  was  injured  by  falling  into  the  ditch  after  dark  on  the 
evening  of  February  1,  1894,  as  he  was  gomg  from  Creek  street  along 
the  new  road  towards  his  saloon.  He  sued  the  citv  of  Cumberland  for 
damages,  alleging  that  this  new  road  was  a  public  street,  which  it  was 
the  duty  of  the  city  to  keep  in  repair,  but  that  it  had  negligently  been 
permitted  to  be  in  a  dangerous  condition,  etc.  There  never  was  any 
grant  to  the  city  of  the  new  road  as  a  street,  nor  was  there  ever  any 
formal  acceptance  by  the  city  of  its  dedication  to  public  use,  but  the' 
appellant  relies  upon  the  facts  about  to  be  mentioned  as  amounting  to 
an  implied  acceptance  by  the  city :  In  January,  1891,  the  city  council, 
in  response  to  a  petition  addressed  to  it  by  the  appellant,  ordered  a  light 
to  be  placed  "at  or  near  the  railroad  crossing  under  the  trestling-  of  the 
\yest  Virginia  Railroad  leading  to  the  towpath,"  and  appointed  a  com- 
mittee to  execute  the  order.  This  committee,  finding  a  light  already 
located  within  50  feet  of  the  place  where  the  road  crossed  under  the 
trestle,  advised  that  this  lamp  be  moved  into  such  a  position  as  would 
throw  its  light  upon  the  crossing  under  the  trestle;  and  the  council 
ordered  it  to  be  done,  but  it  had  not  in  fact  been  done  when  the  acci- 
dent to  the  appellant  occurred.  The  ditch  into  which  he  fell  had  for 
many  years  carried  the  surface  water  from  Creek  and  other  streets 
down  to  the  canal  basin,  and  on  one  or  more  occasions  prior  to  the  ac- 
cident the  employes  of  the  city  had  been  seen  to  clean  out  the  ditch, 
and  scrape  the  surface  of  the  streets  which  it  drained.  In  November, 
18S6,  the  city  council  passed  an  ordinance  accepting  an  offer  of  the 
railroad  company  to  locate  its  freight  depot  so  as  to  occupy  a  portion  of 
the  east  side  of  the  bed  of  Canal  street  at  and  near  its  intersection  with 
Creek  street,  upon  condition  that  the  railroad  companv  would  give  to 
the  city  sufficient  land  on  the  west  side  of  the  street  to  maintain  its 
original  width. 

The  court  below  being  of  the  opinion  that  none  of  the  transactions 
appearing  in  evidence  were  legally  sufficient  to  show  an  acceptance  by 
the  city  of  Cumberland  of  the  24-fcot  road  on  which  the  accident  oc- 
curred, as  a  public  street,  granted  the  prayer  of  the  defendant,  taking 
the  case  from  the  jury,  and  the  plaintiff  appealed. 

There_can  be  no  question  that  the  facts  of  this  case  establish  a  dedi- 
cation to  public  use  by  the  railroad  companv  of  the  road  upon  which 
the  appellant  was  injured.  As  between  the  owner  of  the  land  covered 
by  the  road,  and  the  public,  the  latter  were  entitled  to  use  it  as  a  high- 
wa}^;  but  that  did  not  of  itself  impose  upon  the  city  the  obligation  to 


186  DKRivATivE  TITLES  (Part  2 

keep  the  road  in  repair,  nor  make  it  liable  for  accidents  occurring  from 
the  defective  condition  of  tlie  road.  Before  the  appellee  can  be  held 
liable  for  tlie  iniurv  for  which  the  present  suit  was  instituted,  it  must 
appear  that  there  had  been  an  acceptance  by  it,  through  the  acts  of  its 
authorized^public  departments  or  officials,  of  the  road  on  which  the  ac- 
cident happened,  as  one  oj  its  public  streets.  Kennedy  v.  Mayor,  etc., 
65  Md.  520,  9  A'tr234,  57  Am.  Rep.  346;  State  v.  County  Com'rs  of 
Kent  Co.,  83  Md.  Z17 ,  35  Atl.  62,  33  L.  R.  A.  291 ;  Valentine  v.  City  of 
Hagerstown,  86  Md.  486,  38  Atl.  931 ;  2  Dill.  Mun.  Corp.  §  642.  These 
authorities  hold  that  the  acceptance  of  a  street  by  a  municipality  "mav 
be  either  express,  and  appear  of  record,  or  they  may  be  implied  from 
repairs  knowingly  made  or  paid  for  by  the  authority  which  has  the  legal 
power  to  adopt  the  street  or  highway,  or  from  long  use  by  the  public." 
They  also  hold  that,  when  public  use  is  relied  on  to  establish  the  accept- 
ance, there  must  have  been  an  uninterrupted  use  by  the  public  fQ£_at 
least  20  years,  and  such  use  for  a  less  time  will  be  insufficient. 

It  is  not  contended  in  the  present  case  that  there  has  been  an  express 
municipal  acceptance  of  the  alleged  street,  or  a  public  use  of  it  for  more 
than  20  years ;  nor  is  there,  in  our  opinion,  proof  of  any  acts  or  transac- 
tions on  the  part  of  the  city  or  its  authorized  officials,  in  reference  to  it, 
affording  proper  evidence  of  an  implied  acceptance.  Certainly  the  oc- 
casional cleansing  of  the  ditch,  and  the  scraping  of  Creek  and  the  other 
streets  which  it  drains,  by  the  employes  of  the  city,  can  have  no  im- 
portant bearing  upon  the  subject;  for  it  appears  from  the  evidence  that 
the  ditch  had  been  in  exic;fpnce_  for  40  years  before  the  road  was 
opened^  Nor  is  the  fact  that  the  city  council  were  willing  to  grant  the 
appellant's  request  to  have  a  light  placed  near  the  crossing  of  the  road 
under  the  railway  trestle  important.  The  appellant  himself,  although 
he  offered  the  facts  just  alluded  to  in  evidence,  did  not  strongly  rely 
upon  them  in  argument ;  but  he  claimed  that  the  leaving  open  by  the 
railroad  company  of  the  new  road,  in  its  condemnation  proceedings, 
and  the  passage  shortly  thereafter  by  the  city  council  of  the  ordinance 
allowing  the  railroad  company  to  use  a  portion  of  the  bed  of  Canal 
street,  must  be  taken  as  parts  of  a  common  scheme  to  accommodate 
both  the  railroad  company  and  the  city,  from  which  an  ac"ceptance  by 
the  latter  of  the  new  road  as  one  of  its  streets  is  to  be  implied. 

An  examination  of  these  two  proceedings  makes  it  quite  plain  that 
this  contention  of  the  appellant  cannot  be  maintained.  Each  of  the  two 
proceedings  is  complete  in  itself,  and  neither  one  refers  to,  or  is  de- 
pendent upon,  the  other.  The  condemnation  proceedings  took  away 
from  the  canal  company  the  land  over  which  access  had  theretofore 
been  had  to  its  wharf  and  basin  from  Creek  street,  and  the  new  road 
was  simply  provided  by  the  railroad  company  in  lieu  of  the  one  taken 
away.  The  city  was  not  a  party  to  the  condemnation  proceedings,  nor 
does  the  former  road  over  the  condemned  land  appear  t6  hav<i..igt^r 
been  accepted  bv  the  citv  as  a  street.  The  ordinance  in  reference  to 
Canal  street  fully  covers  the  matter  to  which  it  relates,  and  requires 


Ch.  1)  MODE  OF  CONVEYANCE  187 

the  railroad  company  to  give  to  the  city  additional  land  on  one  side  of 
Canal  street  in  lieu  of  the  portion  on  the  other  side  of  the  street  to  be 
occupied  by  the  depot.  Further,  this  ordinance,  on  its  face,  recites  that, 
when  its  terms  have  been  carried  out,  "the  width  of  said  street  for  traf- 
ficjHirposes  will  be  increased  33  per  cent. ' 

The  record  fails  to  disclose  any  such  acceptance  by  the  appellee  as 
the  law  requires  of  the  road  on  which  the  accident  to  the  appellant  oc- 
curred, and  therefore  the  court  below  properly  took  the  case  away  from 
the  jury.    The  judgment  will  be  affirmed,  with  costs.^^ 

IX.  Release 

BLACKSTONE'S  COMMENTARIES. 

Releases;  which  are  a  discharge  or  a  conveyance  of  a  man's  right  in 
lands  or  tenements,  to  another  that  hath  some  former  estate  in  pos- 
session. The  words  generally  used  therein  are  "remised,  rekased,  and 
forever  quitclaimed."  And  these  releases  may  enure  either/1.  JBy  way 
of  enl^j;^^^ig^^_^r}^_fistg^te,  or  enlarger  Testate:  as  if  there  be^^nant  for 
life  or  years,  remainder  to  another  in  fee,  and  he  in  remainder  releases 
all  his  right  to  the  particular  tenant  and  his  heirs,  this  gives  him  the 
estate  in  fee.  But  in  this  case  the  relessee  must  be  in  possession  of  some 
estate,  for  the  release  to  work  upon ;  for  if  tliere  be  lessee  for  vears, 
and  before  he  enters  and  is  in  his  possession,  the  lessor  releases  to  him 
all  his  right  in  thexeversion  such  release  is  void  for  want  of  possession 
in  the  relessee.X2.y^V  way  of  passing  an  estate,  or  mitter  Testate:  as  ^J-^'-^-'i  ^ 
when  one  of  two  coparceners  releaseth  all  her  right  to  the  other,  this 
passeth  the  fee-simple  of  the  whole.  And  in  both  these  cases  there 
must  be  a  privity  of  estate  between  the  relessor  and  relessee ;  that  is, 
one  of  their  estates  must  be  so  related  to  the  other,  as  to  make  but  one 
and  the  same  estate  in  \^\Y3^yr>y  way  of  passing  a  right  or  mitter  le 
droit :  as  if  a  man  be  disseised,  and  releaseth  to  his  disseisor  all  bis 
right,  iTereby  the  disseisor  acquires  a  new  right,  which  changes 
the  quality  of  his  estat£.^and  renders  that  lawful  which  before  was  tor-  ^  > 

tious  or  wrongfuL/^4>.xCy  way  nf  ^vtingni<;hnipnt-  as  if  my  tenant  for  J^^^^<<^ 
life  makes  a  lease  to  A  for  life,  remainder  to  B  and  his  heirs,  and  I 
release  to  A ;  this  extinguishes  my  right  to  the  reversion,  and  shall 
enure  to>fe<  advantage  of  B's  remainder  as  well  as  of  A's  particular 
estate./SyBy  way  of  entry  and  feoffment:  as  if  there  be  two  joint 
disseisors,  and  the  disseisee  releases  to  one  of  them,  he  shall  be  sole 
seised,  and  shall  keep  out  his  former  companion ;  which  is  the  same  in 
eft'ect  as  if  the  disseisee  had  entered,  and  thereby  put  an  end  to  the  dis- 
seisin, and  afterwards  had  enfeoffed  one  of  the  disseisors  in  fee.    And 

12  See  Arnold  v.  City  of  Orange,  73  N.  J.  Eq.  2S0,  66  Atl.  1052  (1907),  where 
the  construction  of  a  sewer  in  a  dedicated  street  by  direction  of  a  village 
ordinance  was  deemed  suthcient  to  show  acceptance. 


DERIVATIVE   TITLES 


(Part  2 


eupon  we  may  observe,  that  when  a  man  has  in  himself  the  posses- 
ion of  lands,  he  must  at  the  common  law  convev  the  freehold  by  feoff- 
ment and  livery ;  wljich  rnakgs^a  notorietyLJn  the_countrj^ :  but  if  a  man 
has  only  a  right  or  a  future  interest,  he  may  convey  that  right  or  j,n- 
lerest  by  a  mere  release  to  him  that  is  in  possession  of  the  land:  for 
the  occupancy  of  the  relessee  is  a  matter  of  sufficient  notoriety  already. 
Book  2,  *p.  324." 


X.  Confirmation 

BLACKSTONE'S  COMMENTARIES. 

A  confirmation  is  of  a  nature  nearly  allied  to  a  release.  Sir  Edward 
Coke  defines  it  to  be  a  conveyance  of  an  estate  or  right  in  esse  whereby 
a  voidable  estate  is  made  sure  and  unavoidable,  or  whereby  a  particu- 
lar estate  is  increased :  and  the  words  of  making  it  are  these,  "have 
given,  granted,  ^ratified,  _appro'ved,  and  confirmed." 

Book  2,  *p.  325.^*  ' 


XI.  Surrender 


COKE  UPON  LITTLETON. 

"Surrender,"  sursum  redditio,  properly  is  a  yielding  up  an  estate  for 
life  or  years  to  him  that  hath  an  immediate  estate  in  reversion  or  re- 
mainder. _vvherein  the  estate  for  life  or  years  may  drown  by  mutual 
agreement  between  them.^° 

y/^^3^/The  copimon  modern  quitclaim  deed  is  an  outgrowth  of  the  common-law 
cjeTease.     Generally  the  quitclaim  deed  has  been  enlarged  into  a  primary  or 


original  conveyance.  Its  operation,  however,  is  limited  to  the  intpi-{^,<;|-  whirh 
the  grantor  has  at  the  time  of~tGe  execution  of  the  deed. 

1*  In  Boquillas  Land  &  Cattle  Co.  v.  Curtis,  213  U.  S.  339,  29  Sup.  Ct.  493, 
53  L.  Ed.  822  (1909),  it  was  contended  that  a  confirmatory  patent  from  the 
United  States  enlarged  the  rights  of  a  grantee  from  one  of  the  Mexican 
states.  The  court  said:  "But,  while  it  is  true  that  in  Beard  v.  Federy,  3 
Wall.  478,  491,  18  L.  Ed.  88  (1865),  Mr.  Justice  Field  calls  such  a  patent 
a  quitclaim,  we  think  it  rather  should  be  described  as  a  confirmation  in  a 
strict  sense.  'Confirmation  is  the  approbation  or  assent  to  an  estate  already 
created,  which,  as  far  as  in  the  confirmer's  power,  makes  it  good  and  valid ; 
so  that  the  confirmation  doth  not  regularly  create  an  estate;  but  yet  such 
words  may  be  mmgted  m  the  cOhfil'ma[loii,-^gnriiray~cFeate~^nH"'eiilar'ge  an  es- 
tate-i  but  tliat  is  by  tne  torce  or  sucn  words  tnat  are  foreign  to  the  biisTness 
of  confirmation?  wiiDerr,  Tenures  (o.  it  Is  not  to  be  underst(X)d  that \vhen 
the  United  States  executes  a  document  on  the  footing  of  an  earlier  grant  by 
a  former  sovereign,  it  intends  or  purports  to  enlarge  the  grant."  Per 
Holmes,  J. 

13  See  Heroy  v.  Reilly,  84  N.  J,  Law,  671,  87  Atl.  112  (1913).  in  which  suit 
was  brought  against  a  lessee  on  a  contract  made  with  the  plaintiff,  whereby 
the  le:;see  agreed  in  case,  or  a  "saie.  assignment  or  transter'^of  the  term  to 
pay  oyer  to  the  plaintiff  one-third  of  the  net  profit  from  such'fgale  ot  traus- 
fgri__^The  lessee's  administratrix  had  entered  into  an  arrangement  with  the 


CIl.  1)  MODE  OP  CONVEYANCE  189- 

A  surrender  properly  taken  is  of  two  sorts,  viz.,  a  surrender  in  deed. 
or_b^Ljex£ress_ words,  (whereof  Littleton  here  putteth  an  example,)  and 
a  surrender  in  law  wrought  by  consequent  by  operation  of  law^  Little- 
ton here  putteth  his  case  of  a  surrender  of  an  estate  in  possession,  for  a 
right  cannot  be  surrendered.  And  it  is  to  be  noted,  that  a  surrender 
in  law  is  in  some  cases  of  greater  force  than  a  surrender  in  deed.  As 
if  a  man  make  a  lease  for  years  to  begin  at  Michaelmas  next,  this  fu- 
ture interest  cannot  be  surrendered,  because  there  is  no  reversion 
wherein  it  may  drown ;  but  by  a  surrender  in  law  it  may  be_drowned. 
As  if  the  lessee  before  Michaelmas  take  a  new  lease  for  years  either  to 
begin  presently,  or  at  Michaelmas,  this  is  a  surrender  in  law  of  the 
former  lease.    Fortior  et  asquior  est  dispositio  legis  quam  liominis. 

Also  there  is  a  surrender  without  deed,  whereof  Littleton  putteth 
here  an  example  of  an  estate  for  life  of  lands,  which  may  be  surren- 
dered without  deed,  and  without  livery  of  seisin ;  because  it  is  but  a 
yielding,  or  a  restoring  of,  the  state  again  to  him  in  the  immediate  re- 
version or  remainder,  which  are  always  favored  in  law.  ^And  there 
isalso  a  surrender  by  deed:  and  that  is  of  things  that  li^  jn  grmii-, 
whereof  a  particular  estate  cannot  commence  without  deed,  and'  by 
consequent  the  estate  cannot  be  surrendered  without  deed.  But  in  the 
example  that  Littleton  here  putteth,  the  estate  might  commence  without 
deed,  and  therefore  might  be  surrendered  without  deed.  And  albeit 
a  particular  estate  be  made  of  land  by  deed,  vet  may  it  be  surrendered 
without  deed,  m  respect  of  the  nature  and  quality  of  the  thirfg  demi^^d^ 
because  the  particular  estate  might  have  been  made  without  deed ;  and 
so  on  the  other  side.  If  a  man  be  tenant  by  the  curtesy,  or  tenant  in 
dower  of  an  advowson^  rent,  or  other  thing  that  lies  in  grant ;  albeit 
there_  the  estate  begin  without  deed,  yet  in  respect  of  the  nature  and 
quality  of  the  thing  that  lies  in  grant  it  cannot  be  surrendered  without 
deedL.  And  so  if  a  lease  for  life  be  made  of  lands,  the  remainder  for 
life ;  albeit  the  remainder  for  life  began  without  deed,  yet  because  re- 
mainders and  reversions,  though  they  be  of  lands,  are  things  that  lie 
in  grant,  they  cannot  be  surrendered  without  deed.  See  in  my  Reports 
plentiful  matter  of  surrenders. 

337b,  338a.^° 

lessor  whereby  the  former  "waived,  gm'tclnlmpd  and  surrendered"  all  rights 
to  a  renewal  of  the  lease,  and  all  rights  by  virtue  thereof,  and  agreed  to 
"asslgi^.  sublease  and  pnt  the  lessor  i\]  fi]]i  fontrnl  "  retaining  the  right  to 
collect  rent.<  un  t'TTlie  date  of  the  exni ration  of  the  lease.  The  pli^intiflf 
claimed  that  this  arrangement  entitled  him  under  his  contract  to  recover  one- 
third  the  profit  made  thereby. 

16  See  the  Statute  of  Frauds,  §  3.  supra,  p.  157. 

By  the  Real  Property  Act  of  1S45  (St.  8  &  9  Vict.  c.  lOG,  §  3)  it  is  provided 
that  surrenders  of  estates  other  than  those  which  might  by  law  be  created 
without  writing,  shall  be  void  at  la^,  unless  made  by  deed. 


190  DERIVATIVE  TITLES  (Part  2 

LORD  WARD  v.  LUMLEY. 

(Court  of  Exchequer,  1860.     5  Hurl.  &  N.  87.) 

Declaration. — That  the  plaintiff  bY_de£d^ated  the  6th  May,  A.  D. 
1856,  let  and  demised  to  the  defendant  all  that  building  called  "Her 
Majesty's  Theatre."  situate  in  the  Haymarket,  in  the  county  of  Mid- 
dlesex, for  the  term  of  four  years  and  nine  calendar  months,  to  be 
computed  from  the  25th  day  of  March  then  last  mentioned,  at  and  un- 
der (amongst  other  rents)  the  rents  following,  that  is  to.  say,  tlie  rent 
of  il934.  14s.  for  the  first  year  of  the  said  term,  and  the  yearly  rent 
of  £6275.  for  every  of  the  second,  third,  and,  fourth  years  of  such 
term,  and  the  sum  of  i4706.  5s.,  for  the  last  nine  calendar  months 
of  the  said  term,  such  rents  to  be  payable  beforehand,  or  one  quarter 
in  advance,  by  four  equal  quarterly  payments  on  each  of  the  first  four 
years  of  the  said  term.  That  after  the  making  of  the  said  deed,  the 
defendant  entered  into  and  upon  the  said  premises,  for  the  said  term, 
and  afterwards,  during  said  term,  to  wit,  on  the  21st  June,  A.  D.  1858. 
the  sum  of  £4569.,  of  the  rent  aforesaid,  for  three  quarters  then 
elapsed,  became  and  was  due  and  owing  from  the  defendant  to  the 
plaintiff,  and  the  same  is  still  in  arrear  and  unpaid. 

Plea. — That  the  said  deed,  by  which  the  plaintiff  demised  the  said 
premises  to  the  defendant,  was  made  between  the  plaintiff  and  the 
defendant,  and  was  sealed  with  the  seal  of  the  defendant ;  and  the 
defendant  never  was  in  any  way  liable  to  pay  to  the  plamtitt  the  said 
rent  or  any  part  of  it  except  under  and  by  virtue  of  covenants  made 
by  the  defendant  with  the  plaintiff,  and  contained  in  the  said  deed ; 
which  covenants  bound  the  defendant  to  pay  the  said  rent  to  the 
plaintiff  at  the  times  and  upon  the  terms  in  the  declaration  particularly 
mentioned ;  and  the  defendant  never  entered  upon  or  occupied  the 
said  premises,  or  any  part  thereof,  except  under  the  said  deed  so  made 
between  the  plaintiff  and  defendant,  and  sealed  with  their  seals  as 
aforesaid,  and  containing  the  said  covenants.  That  after  the  making 
of  the  said  deed,  and  before  this  suit,  the  said  deed  was  and  now  is 
v^holly  cancelled  by  and  with  the  assent  of  the  plaintiff  and  of  the 
defendant;  and  also  all  the  estate,  term,  and  interest  of  the  defendant 
in  the  said  premises  was  duly  surrendered  to  the  plaintiff  Ijy  act  and 
operation  of  law,  after  the  said  rent  became  due  under  the  said  cove- 
nants as  atoresaid  ana  petore  tnis  suit. 

Demurrer  and  joinder  therein.  " 

Martin,  B.  We  are  all  of  opinion  that  the  plea  is  bad.  When  a 
man  demises  land  for  a  term  of  years,  reserving  to  himself  a  rent, 
the  effect  of  it  is  to  create  two  estates,  viz.,  the  estate  of  the  lessee. 
and  the  reversion  of  the  lessor,  and  The  rent  is  incident  to  the  rever- 
sion. When  the  day  of  payment  arrives,  the  rent  still  remains  an- 
nexed to  the  reversion.  Here,  the  question  is  whether  the  simply  can- 
celling a  lease  destroys  thelfessor's  right  of  action  tor  the  recovery 


Ch.  1)  MODE  OF  CONVEYANCE  191 

of  the  rent,  I  am  of  opinion  that  it  does  not,  because  the  cancelling 
a  lease  does  not  destroy  the  estates  already  vested  or  their  incidents. 

W ATSO N,  B.  I  am  of  the  same  opinion.  Where  the  contract  arises 
from  the  deed  itself,  and  the  deed  is  destroyed,  no  action  can  be  main- 
tained in  respect  of  it.  But  this  case  is  very  different,  for  here,  upon 
tli(;^  .^ypmtinn  nf  the  deed,  there  p^gg'^d  ^^'''^''■i  thf!  ^ssor  to  tlie  lessee 
an  estate  which  was  not  sffpr^^d  by  the  rancellation  of  the  lease.  The 
lessee  holds  the  estate  subject  to  the  rent  which  is  incident  to  the  re- 
version in  the  lessor.  According  to  the  argument  for  the  defendant, 
he  may  hold  the  estate  without  payment  of  rent.  But  the  authorities 
are  clear  that  the  cancelling  a  deed  does  not  divest  the  estate  ot  the 
lessee^^or  deprive  the  lessor  of  his  right  of  action  upon  the  demise. 

Martin,  B.,  added :  The  Lord  Chief  Baron,  who  has  left  the  Court, 
requested  me  to  say  that  he  is  of  tlie  same  opinion. 

J  udgment  for  the  plaintiff.-^  ^ 


ALLEN  v.  JAQUISH. 

(Supreme  Court  of  New  York,  1839.     21  Wend.  62S.) 

This  was  an  action  of  ejectment,  tried  at  the  Delaware  circuit  in 
May,  1837,  before  tlie  Hon.  James  Vanderpoel,  then  one  of  the  circuit 
judges. 

On  the  25th  August,  1834,  an  agreement  under  seal  was  entered  into 
by  the  plaintiff  and  John  Jaquish,  Junior,  whereby  the  plaintiff  bound 
himself  to  furnish  a  mill  on  a  certain  stream  and  as  much  timber  as 
could  be  cut  and  sawed  into  lumber  and  manufactured  into  shingles 
bv  Taguish  during  ten  years  next  ensuing  the  date  of  the  agreement, 
from  certain  specified  lots ;  to  keep  the  mill  in  repair,  and  withm  one 
year  to  make  a  good  road  from  the  mill  to  the  river  Delaware — giving 
by  the  agreement  imrnediate  possession  to  Jaquish  of  the  mill,  mill-lot 
and  house,  and  authorizing  him  to  clear  as  much  land  as  he  saw  fit. 
Jaquish  on  his  part  agreed  to  erect  two  shingle  machines  and  put 
them  in  operation  in  the  mill  by  the  1st  June,  1835,  to  keep  them  in 
repair  or  supply  their  places,  and  to  saw  as  much  lumber  and  manu- 
facture as  many  shingles  as  could  be  made  during  the  stipulated  time ; 
for  which  privileges  he  agreed  to  leave  at  the  mill  one-third  of  all 
the  lumber  and  shingles  which  should  be  manufactured,  ^y  an  agree- 
mgnt  endorsed  on  the  above  instrument,  the  plaintiff  authorized  Ta- 
qui.sh  to  have  a' jack  made  at  the  expense  of  the  plaintiff.  In  October, 
1835,  another  agreement  in  writing,  but  not  under  seal,  was  signed  by 


17  See  Beidler  v.  Fish.  14  111.  App.  29  (1SS3);  Brewer  v.  B'ld'g  Assoc,  16<i 
111.  221,  46  N.  E.  752  (1897). 

A^  term  is  properly  oi-Piifpf]  hy  pni-nl ;  may  it  be  surrendered  by  paroLI  See 
Logan  V.  Barr,  4  Har.  (Del.)  546  (1S47)';  Mckinney  v.  Reader.  7  ^Vatts  (Pa.) 
128  (18.38) ;  Ross  v.  Schneider,  30  lud.  423  (1S68) ;  Smith  v.  Devlin,  23  N.  Y, 
363  (1861). 


192  DERIVATIVE  TITLES  (Part  2 

John  Jaquish,  Jun.,  whereby,  after  reciting  the  former  agreement 
on  his  part  to  put  up  two  shingle  machines  in  the  mill  of  the  plain- 
tiff, he  stipulated  as  follows :  "I  do  hereby  engage,  if  I  do  not  put  up 
the  said  shingle  machines  in  the  said  mill  and  get  them  in  operatipn 
by  the  first  day  of  |une,  1836^  I  will  then  relinquish  the  contract  and 
give  up  every  thing  I  have  done,  and  leave  all  things  on  the  premises, 
provided  I  shall  be  entitled  to~l-eceive  two-thirds  of  all  the  lumber 
sawed  at  the  mill  until  the  said  first  of  June,  1836."  The  shingle  ma- 
chines not  being  erected  and  put  into  operation  bv  the  first  day  of 
June,  1836,  the  plaintiff  caused  a  notice  to  quit  to  be  served  on  John 
Jaquish,  Jun.,  on  the  tenth  day  of  Tune.  A  similar  notice  having  two 
days  before  been  served  upon  Cornelius  Jaquish  and  John  W.  Jaquish, 
who  were  made  defendants  jointly  with  John  Jaquish,  Jun.,  in  this 
action,  which  was  commenced  shortly  afterwards ;  the  declaration  be- 
ing returnable  at  July  term,  1836. 

The  plaintiff  having  rested,  the  defendant's  counsel  asked  for  a  non- 
suit on  the  following  grounds :  1.  That  the  suit  was  prematurely 
brought  under  the  notice  to  quit;  2.  That  the  plaintiff  had  failed  to 
shew  performance  of  the  stipulations  on  his  part  as  contained  in  the 
contract,  as  to  the  making  of  a  good  road,  &c. ;  3.  That  there  was  no 
proof  of  a  joint  possession  of  the  premises  by  the  defendants  in  tlie 
action;  and  4.  That  the  second  agreement  was  void,  being  without 
consideration  and  not  sealed.  The  judge  refused  to  nonsuit  the  plain- 
tiff.  The  defendants  then  offered  to  prove  non-performance  of  sun- 
dry" stipulations  in  the  contract  on  the  part  of  the  plaintiff;  which  evi- 
dence being  objected  to,  was  rejected  by  the  judge.  The  evidence  of 
a  joint  possession  of  the  premises  by  the  defendants  resting  in  cir- 
cumstances, the  counsel  for  the  defendants  asked  the  judge  to  require 
the  plaintiff  to  elect,  against  which  of  the  defendants  he  would  pro- 
ceed, insisting  that  a  joint  possession  had  not  been  shewn,  or  to  non- 
suit the  plaintiff.  The  judge  refused  to  do  either.  Whereupon  the 
cause  was  summed  up  and  the  iurv  found  a  verdict  for  the  plaintiff 
against  all  the  defendants;   who  now  moved  for  a  new  trial. 

CowEN,  J.^*  [After  ruling  against  the  defendants  tlie  minor  ob- 
jections raised  in  the  case,  such  as  that  a  joint  possession  was  not 
shown  in  the  defendants,  and  that  the  evidence  offered  of  nonper- 
formance by  the  plaintiff  of  the  stipulations  in  the  first  contract  on 
his  part  agreed  to  be  performed  ought  not  to  have  been  rejected,  tlie 
judge  proceeded  as  follows:] 

The  second  agreement  was,  I  think,  valid.  One  objection  raised  on 
the  argument  wa~s,  that  tHe  agreement  not  being  under  seal,  it  should 
have  expressed  a  consideration.  It  was  evidently  intended  as  a  modi- 
fication of  the  first  agreement  or  lease!  it  was  signed  by  the  defend- 
ant, John  Jaquish,  Jun.7  the  original  lessee,  and  accepted  by  the  plain- 
tiff on  account  of  the  delay  and  non-performance;   perhaps,  of  both 

ISA  portion  of  the  opinion  is  omitted. 


Ch.  1)  MODE  OF  CONVEYANCE  19S 

parties.  J^hn  Jaquish,  Jun.,  deeming  himself  most  in  fault,  aoreed,  on 
account  ot  his  non-pertormance,  mentioned  in  his  second  agreement, 
to  repair  the  omission  by  a  given  day,  or  relmquish  his  nrip-jnal  lea^. 
He  meant  the  last  contract  should  operate  as  a  part  ot  the  first;  and 
the  motive  or  consideration  is  plainly  enough  collectable  from  the 
face  of  the  new  contract.  He  was  to  have  a  share  of  tlie  lumber  sawed 
at  the  mill  in  the  mean  time,  and  the  plaintiff  had  been  damaged  by 
the  breach.  Here  are  two  concurring  considerations,  the  satisfaction 
of  damage  tothe  plainUft,  and  a  clear  right  or  benefit  acquired  by 
John  Jaquish,  |um,  It  was  not  necessary  that  these  should  be  ex- 
pressly mentioned  as  the  consideration.  It  is  enough  that  they  are 
obviously  so  in  fact,  from  the  recital  and  nature  of  tlie  instrument. 

If  the  lease  became  void,  in  consequence  of  not  fulfilling  the  second 
agreement,  or,  if  the  latter  operated  as  a  surrender,  the  case  was  not 
one  in  which  any  noti^e^tojiuit  was  necessary.  That  is  never  re- 
quired where  the  pnrJMeshave  bv  mutual  agreement  fixed  tlie  terms 
on  which  the  lease  is  to  terminate.  The  lessee  may  always  waive  the 
right  to  require  notice ;  and  for  the  same  reason,  the  right  never  arises 
where  a  lease  for  years  exoifpfs  1-»y  ^^"'^  ^^n  h'lnitation.  or  the  parties 
Viavp  ritheri^yit^p  made  an  end  of  it.  Conventio  vincit  legem.  If  a 
party  has,  in  any  form,  transferred  ajl  his  interest  to  another,  he  is 
bound  to  quit  the  possession.  If  he  do  not,  an  ejectment  lies  agajnst 
him  immediately.  ^ \\ 

('  The  important  question  is,  in  w.hat  way  did  the  second  writing  be-  Q^  "J  j 
tween  these  two  parties  operate  ?y  Did  it  enure  as  a  mere  promise,  a  ^"-^ — 
defeasance,  or  modification  of  the  lease;  or  was  it  a  surrender?  If 
a  mere  promise,  ejectment  will  not  lie  upon  it;  but  only  an  action  of 
assumpsit.  To  warrant  the  present  action,  therefore,  it  must  have 
operated  to  extinguish  the  lease,  or  pass  the  interest  of  the  lessee  to 
the  plaintiff.     *     *     * 

The  second  agreement  thus  failing  to  operate  as  a  defeasance,  the 
next  question  is,  whether  it  could  operate  as  a  contingent  surrender, 
it^  being  in  the  nature  of  a  re-demise_.  There  is  no  doubt  that  either 
a  surrender  or  demise  may  be  etfec"ted  by  a  simple  writing  not  sealed. 
Magennis  v.'MacCuUogh,  Uilb.  Kq.  Cas.  235,  6;  Co.  Litt.  338,  a,  note 
(1);    Farmer  v.  Rogers,  2  Wils.  26.     The^erative  words  of, ,a  ,sur-  ^ 

render  are,  "hath  surrendered,  granted  and  yielded  up."  2  Black. 
"Cbmm.  326 ;  Co.  Litt.  337,  b ;  Woodf .  Land,  and  Ten.  185  (Lond.  Ed. 
of  1804).  There  is  no  doubt,  however,  that  a  surrender  may  be  ef- 
fected by  equivalent  words ;  and  when  complete,  it  is  as  it  were  a 
re-demise.  Woodf.  Land,  and  Ten.  (Ed.  before  cited)  186;  Perk.  sec. 
607.  It  may  be  made  upon  condition;  that  is.  to  become  void  upon 
condition.  Perk,  sec.  624.  And  though  no  case  goes  so  far  as  to  say 
that  a  surrender  may  be  made  to  become  good  upon  condition  prece- 
dent, yet  there  seems  to  be  no  objection  to  that  in  principle,  if  the 
interest  surrendered  be  not  a  freehold.  That  cannot,  in  general,  be 
Aig.Pkop. — 13 


\^^^ 


194  DERIVATIVE  TITLES  (Part  li 

granted  so  as  to  take  effect  in  future;  but  a  term  for  years  can. 
The  surrender  of  a  term  to  operate  in  futuro  is  equally  free  of  the 
objection.  Contracts  of  parties,  whether  by  deed  or  otherwise,  shall 
always  take  effect  according  to  their  real  intent,  if  that  be  possible, 
consistently  with  the  rules  of  law,  in  VVhitlock  v.  Horton,  Cro.  Jac. 
91,  Mary  Milton,  by  indenture  between  her  and  the  defendant,  cove- 
nanted, granted  and  agreed,  that  tlie  defendant  should  and  might,  have, 
hold  and  enjoy,  from  and  after  the  death  of  E.  W.  the  moiety  of  cer- 
tain lands,  for  sixty  years,  &c.  And  it  was  held  that  tliese  were  apt 
words  to  make  a  lease  for  years,  and  might  enure  as  a  lease  in  futuro. 
Richards  v.  Sely,  2  Mod.  79,  is  a  like  case.  And  there,  Maynard, 
Serj.,  conceded  that  the  word  "covenant"  would  of  itself  make  a  lease, 
which  is  adopted  and  repeated  in  Woodf .  Land,  and  Ten.  7  (Lond.  ed. 
1804).  The  latter  author,  at  p.  6  says  it  is  a  general  rule,  "that  what- 
ever words  are  sufficient  to  explain  the  intent  of  the  parties,  that  one 
shall  divest  himself  of  the  possession,  and  the  other  come  into  it,  for 
such  a  determinate  time,  whether  they  run  in  the  form  of  a  license, 
covenant  or  ag;re£ment,  are  of  themselves  sufficient ;  and  will,  in  con- 
struction of  law,  amount  to  a  lease  for  vears.  as  eff'ectually  as  if  the 
most  proper  and  pertinent  words  had  been  made  use  of  for  that  pur- 
pose." Otherwise  of  the  most  apt  words,  if  they  appear  to  be  only 
preparatory  to  a  future  lease  to  be  made,  Bac.  Abr.  Leases,  &c.  (K), 
S.  P.  We  have  seen  that  Woodfall,  in  another  place,  speal<s  of  a  sur- 
render operating  as  of  the  nature  of  a  re-demise.  Suppose  the  owner 
of  land  promises  another  in  writing,  for  good  consideration,  that  on 
the  other  paying  so  much,  he,  tlie  owner,  will  relinquish  and  give  up 
the  land  to  the  promisee  for  ten  years  at  such  a  rent.  Is  there  a 
doubt,  that  on  paying  the  money,  the  promisee  might  enter  or  bring 
ejectment  as  a  lessee?  I  should  tliink  not.  The  case  at  bar  is  quite 
as  strong;  for  the  lessee  agrees  that  if  he  failto  perform,  he  ^v'l'  ^<^- 
linquish  his  lease  and  give  up  everything.  No  farther  act  is  spoken 
of!  The  meaning  was  to  annul  and  render  the  lease  inoperative ;  and 
although  it  could  not  enure  as  a  defeasance  or  as  a  demise,  yet  it  may, 
I  think,  enure  and  take  effect  as  a  surrender,  on  the  contingency  hap- 
pening. Test  the  case  by  the  rule  in  Woodfall.  Can  any  one  doubt 
that  the  lessee  intended  to  divest  himself  of  the  possession,  and  let 
tlie  lessor  take  it  for  the  whole  remaining  term  of  the  lease?  In  tliis 
view  the  verdict  at  the  circuit  is  sustainable,  and  a  new  trial  must  be 
denied. 

New  trial  denied.^" 

10  Mundy  v.  Warner,  61  N.  J.  Law,  395,  39  Atl.  697  (1S9S),  ace.     'J  npi 
vgpr  jStioDsjlv  of  oijiiiion  that  there  caunot  be  a  snrvppflpr  tn  fs^kp.  plnpp  in 
futuro''     I'arke,  B.,  in  Doe  (i."'AluiTell  v.  Milwara,  3  M.  &  W.  328  (1S3S).  " 
"SeeTIarris  v.  HifscocU,  91  N.  Y.  3i0  (1883),  as  to  suHlciency  of  language  to 
accomplish  a  surrender. 


Ch.  1)  MODE  OF  CONVEYANCE  195 

IVE'S  CASE. 

(Court  of  Common  Pleas,  1597.    5  Coke,  11a.) 

Ive  brought  an  action  of  waste  against  Sammes,  and  counted  of  a 
lease  made  to  the  defendant  of  the  manor  of  Tottenham  in  the  county 
of  Essex  for  30  years;  the  defendant  pleaded,  non  dimisit;  and  by 
special  verdict  it  was  found,  diat  the  lessor  made  a  lease  for  30  years 
of  the  said  manor,  except  all  woods  and  underwoods  growing  or  being 
on  the  manor :  and  afterwards  made  a  second  lease  to  the  same  lessee 
of  all  the  woods  and  underwoods  growing  or  being  on  the  said  manor 
for  the  term  of  62  years  without  impeachment  of  waste,  and  after- 
wards made  a  third  lease  of  the  said  manor  to  the  said  lessee  for  30 
vears,  witliout  exception,  to  begin  at  a  day  to  come,  scil,  from  the  ex- 
piration of  the  said  first  lease  for  30  vears ;  and  after  the  term  30  years 
expired;  the  lessee  cut  trees ;  Ive  in  reversion. brouj^ht  an  action  of 
waste ;  and  it  was  adjudged  for  the  plaintilf.  And  in  this  case  three 
points  were  resolveS!     *     *     *  ^° 

3.  That  by  the  acceptance  of  a  future  lease  to  begin  divers  years 
after,  the  said  lease  of  the  wood  for  62  years  was  presently  surrjendeij:, 
ed,  becjiuse  the  lessee  by  acceptance  thereof  had  affirmed  the  lessor 
to  have  ability  to  make  the  new  lease,  which  he  had  not,  if  the  first 
Igase  shall  stand ;  as  if  lessee  for  20  years  takes  a  lease  for  three  years, 
to  begin  10  years  after;  itj^aj^^e^^l,^£Ui;render  ofthewhole  terjii^ 
for  it  cannot  be  a  surrender  of  the  last  10  years,  anSi^mainTor  the 
first  10  years,  and  so  to  make  a  fraction  of  the  term,  nor  can  he  who 
hath  a  lease  for  20  years  surrender  the  last  10  years  by  any  express 
surrender  saving  to  him  the  first  iU  years.  Vide  14  H.  8,  iSf " 2T^r . 
112.  4  Mar.  141.  3  Eliz.  200.  10  Eliz.  272.  11  Eliz.  280.  35  H.  8, 
57.  21  H.  7,  6.  31  Ass.  p.  26.  32  H.  8,  46.  Z7  H.  6,  17.  14  H.  7,  Z7 . 
21  H.  7,  12,  40.  13  R.  2.  Dower.  40  E.  3,  24,  43.  41  E.  3,  13.  44  E. 
3,  25,  26.    25  E.  3,  13.^^  ^ 

DAVISON  ex  dem.  BROMLEY  v.  STANLEY. 
(Court  of  King's  Bench,  1768.    4  Burr.  2210.) 

This  was  a  case  reserved  from  the  assizes;  upon  an  ejectment,  tried 
before  Mr.  Justice  Yates. 

The  short  of  it,  so  far  as  concerned  the  point  now  determined,  was, 
that  Wdliam  Bromley,  Esq.,  being  seised  in  fee,  in  the  year  1686,  de- 

-^That  part  of  the  report  dealing  with  the  first  two  points  is  omitted. 
/  2/"Lessee  for  21  years  took  a  lease  of  the  same  lands  for  40  years  to  begin 
Wmediiitely  after  the  death  of  J.  S.  It  was  holden  in  this  case  that  the 
same  was  not  any  present  surrender  of  the  first  term;  ^vX  if  J.  S.  die  vvjthin 
the  term  then  it  is  a  surrender,  for  it  may  be  that  J.  S.  shan"5Ut'yTvg  the 
first  teriiL"     Anon.,  4  Leon.  i>0  (15S8). 

~^e  Tracy  v.  Albany  Exchange  Co.,  7  N.  Y.  472,  57  Am.  Dec.  538  (1852), 
wherp  tiia  new  lease  was  to  take  effect  on  expiration  of  existing  term. 


6^ 


196  DERIVATIVE  TITLES  (Part  2 

mised  for  ninety-nine  years,  to  hold  from  the  day  of  the  date.  After- 
wards, William  Bromley,  upon  the  marriage  of  Francis  Bromley,  with 
Ann  Walsh,  joined  in  a  settlement_jvar^''  ^"'^s  uncle  Francis  Bromley, 
?)nd_reduced  his  former  estqtp  in  fee  tn  an  estate  for  Hfe.  This  was  a 
voluntary  settlement,  and  had  a  power  in  it ;  but  it  was  not  pretended 
that  the  second  lease  was  made  according  to  that  power.  After  this, 
William  rheino-  then  nnlv  tenant  for  life)  in  1693.  makes  a  new  lease 
for  ninetv-nine  years,  to  the  same  tenant,  of  the  same  premises,  with- 
out communicating  to  the  tenant  the  alteration  which  he  had  made  of 
his  estate,  by  rednrinp-  his  fee  to  a  hte-estate:  and  this  was  acquiej^^d 
"^  /  in,  and  the  rent  paid  and  received,  for  sixty  years.    In  the  mean  time, 

Y  ^  and  before  any  objection  was  made  with  regard  to  these  leases,  William 

Bromley  died,  and  his  effects  came  into  the  hands  of  Lord  Montfort. 

The  lessor  of  the  plaintiff  was  tenant  in  fail  under  the  settlement ; 
and  claimed  a  right  to  disjjossess  the  tenant 

\lie  only  question  upon  which  the  Court  gave  their  opinion,  was — 
''whether  the  acceptance  of  the  second  lease  operated  as  a  surrender 
of*the  forrner  lease." 

Lord  Mansfield  agreed,  that  the  acceptance  of  a  second  good 
lease  will  operate  as  a  surrender  of  a  former.  But  the  reason  does  not 
hold,  in  the  case  of  accepting  a  new  void  lease,  or  one  that  the  lessee 
can't  enjoy. 

In  the  present  case,  Mr.  William  Bromley  had  probably  forgotten 
that  he  had  altere^iis  estate  m  fee  to  an  estate  for  life;  at  least,  he  did 
not  tell  the  lessee,  that  he  had  so  done. 

'i"he  hrst  lease  was  for  ninety-nine  years  from  the  day  of  the  date : 
the  second  lease  is  for  ninety-nine  years,  to  commence  immediately; 
and  there  is  not  a  word  said  of  the  settlement  or  power.  The  tenant 
made  a  fair  contract,  bona  fide,  for  a  valuable  consideration.  Thfi-aec- 
orid  lease  was  a  deceit  upon  him ;  for  the  lessor  had  no  title  to  grant 
this  new  lease.  But  the  present  lessor  oFthe  plaintiff  says  he  sFall 
lose  the  former  lease  too;  because  the  latter  is  inconsistent  with  the 
former ;  and  he  could  not  hold  under  both. 

Where  the  first  could  be  of  no  use,  if  he  had  had  the  second ;  and 
both  parties  so  intended;  there  is  no  inconsistency  in  the  acceptance  of 
a  new  good  lease  being  a  surrender  of  the  former.  But  the  accepting 
a,  new  void  lease,  which  the  lessee  is  not  to  enjoy,  could  not  she\v_an 
intention  to  surrender  the  other^  Therefore,  the  reason  why  this 
should  be  an  implied  surrender,  totally  fails.  A  void  contract  for  a 
thing  that  a  man  cannot  enjo3^,  cannot  in  common  sense  and  reason, 
imply  an  agreement  to  give  up  a  former  contract.  And  Mr.  Price  has 
shewn  that  the  law  is  so ;  and  that  cases  of  this  nature  appear  to  have 
been  grounded  upon  solid  reason,  when  they  are  well  considered. 

lam  very  clearjhat  the  acceptance  of  this  new  lease,  which  did  not 
pass  an  mterestaccording  to  the  contract,  cannot  operate  as  a  sur- 
render of  the  former.  And  this  is  sufficient :  I  will  not  enter  into  any 
other  questions  about  the  other  parts  of  the  case. 


v/ 


Ch.  1)  MODE  OF  CONVEYANCE  197 

The  second  lease  did  not  pass  an  interest  according  to  the  contract. 

The  plaintiff  has  no  right  to  recover. 

I  give  no  opinion  whether  the  acts  of  the  lessor  have  or  have  not 
made  the  new  lease  good  for  the  whole  of  the  term. 

The  three  other  Judges  were  clearly  of  the  same  opinion. 

Per  Cur'.  Let  the  postea  be  delivered  to  the  defendant;  in  order 
that  a  nonsuit  may  be  entered. ^^ 

ZICK  v.  LONDON  UNITED  TRAMWAYS,  LIMITED. 
(Court  of  Appeal,  King's  Bench    Division.     [1908]  2  K.  B.  126.) 

Appeal  from  the  judgment  of  Jelf,  J.,  in  an  action  tried  by  him 
without  a  jury.     [1908]  1  K.  B.  611. 

The  action  was  in  form  an  action  for  trespass  brought  by  the  plain- 
tiff Zick,  who  was  the  occupier  of  a  shop,  house,  and  forecourt,  num- 
bered 84,  Merton  High  Street,  Wimbledon,  and  carried  on  business 
there  as  a  furniture  dealer,  to  recover  damages  from  the  defendant 

COmpanv  for  entering  ^^^^  tregpn'^sing  upon  the  plaintiff's  prf"'"''^^"^  r>n 

March  20,  1907,  and  the  following  days,  and  for  depriving  him  of  the 
use  of  the  said  forecourt  and  thereby  interfering  with  his  business. 

On  the  pleadings  the  defendants,  besides  putting  the  plaintiff  to  the 
proof  of  his  case,  set  up  the  following  defence  :^hat  by  the  London 
United  Tramways  Act,  1902  (2  Edw.  VII,  c.  247),  incorporating  the 
Land  Clauses  Consolidation  Act,  1845,  they  were  authorized  to  acquire 
compulsorily  the  saidjgrecourt  for  widening  the  roadway ;  that  on 
May  28,  1905,  thev  served  notice  to  treat  on  Coope  and  Heatley,  the 
leaseholders,  being  mortgagees  in  possession  of  the  said  premises  and 
forecourtpTor  the  purchase  of  their  interest  in  said  forecourt ;  that 
at  the  date  of  the  service  of  said  notice  the  plaintiff  was  not  the  occu- 
pier nor  in  possession  of  the  said  premises  or  forecourt,  and  had_no 
interest  therein;  that  notwithstanding  the  service  of  the  said  notice, 
Coope  and  Heatley  purported  after  the  date  of  such  service  to  grj^^nt 
to  the  plaintiff  an  mterest  m  tTje~said  premises  and  forecourt  by  means 
of  an  agreement  of  tenancy,  and  that  such  an  agreement  of  tenancy 
was  invalid  in  law  against  the  defendants.  ^     *     *  ^^ 

2  2  Roe  V.  Archbishop  of  York,  6  East,  86  (1805).  ace.  See  Doe  v.  Courtenay, 
11  Q.  B.  702  (1848);    Doe  v.  Poole,  11  Q.  B.  713  (1848). 

Premises  were  in  possession  of  H.  as  tenant  from  year  to  year  when  H. 
and  M.  agreed  to  take  a  lease  of  same  for  seven  years  at  a  yearly  rental  ;• 
the  agreement  was  in  writing,  but  the  contemplated  lease  was  never  drawn: 
H.  and  M.,  however,  entered  and  held  possession  for  a  time,  M.  then  dropping 
out,  leaving  H.  as  sole  occupant.  No  rent  having  been  paid,  the  lessor  took 
possession  and  kept  S.  out.  In  an  action  by  S.  in  trespass  the  question  was 
whether  the  original  tenancy  from  year  to  year  had  been  terminated.  JJeld, 
that  the  former  tenancy  had  come  to  an  end  by  surrender  in  law^  Hamerton 
v!  b'tead,  8  B.  &  (J.  4'<8  (1824).  ' 

23  The  statement  of  the  facts  and  pleadings  is  omitted ;  the  case  sufficient- 
ly appears  in  the  opinions.  The  concurring  opinion  of  Kennedy,  L.  J.,  is  also 
omitted. 


i 


1.98  DERIVATIVE  TITLES  (Part  2 

The  learned  judge  gave  judgment  for  the  plaintiff. 
X    Sir  GorelIv  Barnes,  President.    I  am  of  opinion  that  the  conclu- 
I    sion  arrived  at  by  the  learned  judge  is  right,  and  I  can  put  my  view  of 
/     the  case  very  shortly.     An  agreement  was  made  on  March  15.  1905. 
'^\j      \     by  which  Fellowes.  as  agent  tor  the  morteagees  in  possession  of  the 
^^  \     premises  in  question,  let  them  to  one  Sinclair  for  a  term  of  three  vears. 

which  would  expire  on  March  14.  1908.  On  May  15,  1905,  the  defend- 
I  ants  served  the  notice  to  treat  on  the  lessors'  agent.  Rv__an  agreement 
/  dated  January  23,  1906,  Sinclair,  without  any  knowledge  of  lh£_notice 
to  treat,  sold  to  the  plaintiff  Zick  the  furniture  and  effects  on  the  prem- 
ises,  with  certain  exceptions,  and  agreed  to  stand  possessed  of  the  lease 
of  the  premises  in  trust  fori-hp  pbintiff ;  and  in  February  the  plaintiff 
entered  on  the  premises.  Afterwards,  in  order  that  the  plaintiff  should 
have  not  only  the  beneficial  but  also  the  legal  possession  of  the  prem- 
ises, Sinclair  informed  Fellowes  that  he  desired  to  transfer  to  the  pjain- 
tjff  the  unexpired  portion  of  his  tenancy,  and  Fellowes  said  that  he 
thought  he  could  arrange  with  his  prmcipais  tor  a  surrender  of  Jjie 
existing  tenancy  and  the  granting  of  a  fresh  agreement  to  the  plaintiff 
for  a  term  of  three  years,  instead  of  the  plaintiff  taking  a  transfer  of 
a  term  which  had  only  two  years  to  run.  The  plaintiff  accepted  this 
proposal,  and  accordingly,  on  February  14,  1906,  an  agreement  was 
executed  for  a  new  tenancy  which  would  expire  on  February  14,~  1909. 
Under  tnese  circumstances  the  defendants  contend  that  the  plaintiff  is 
not  entitled  to  any  compensation.  The  objection  taken  by  the  defend- 
ants to  the  plaintiff's  right  to  compensation  appears  to  me  to  be  purely 
technical  and  to  have  no  merits.  The  parties  to  the  transaction,  Sin- 
clair,  the  plaintiff,  and  Fellowes^  pntprprj  intojlie  agreement  iff  F'^^^''"- 
ary  14,  i^iJb,  for  a  new  tenancy  extending  beyond  the  unexpired  pejiod 
of  the  former  tenancy,  thinking,  no  doubt,  that  it  would  operate  as  a 
surrender  of  the  old  term..  But,  in  consequence  of  the  service  of  the 
notice  to  treat,  the  mortgagees  in  possession  of  the  premises  had  no 
longer  any  right  to  create  a  new  tenancy  which  extended  beyond  the 
period  ot  ttie  existing  tenancy.  The  result,  as  it  apppq|-<;  tn  rnp^wnnlH 
be  that  the  surrender  never  came  into  operation  bera^ise  the  rnnsidera- 
tion  for  it  failp^T  So  Sinclair  remained  entitled  to  treat  the  original 
tenancy  as  subsisting,  and  to  claim  compensation  in  respect  of  it  as 
trustee  for  the  plaintiff.  The  plaintiff  appears  to  have  offered  to  join 
Sinclair  as  plaintiff  in  the  action,  but  it  does  not  seem  to  have  been  con- 
sidered necessary,  inasmuch  as  it  was  agreed  that  the  real  question  for 
decision  at  the  trial  was  whether  the  plaintiff,  under  the  circumstanc- 
es which  I  have  mentioned,  was  a  person  who  had  such  an  interest  as 
entitled  him  to  compensation  in  respect  of  the  period  extending  up  to 
the  date  on  which  the  original  tenancy  of  Sinclair  would  have  expired. 
For  the  reasons  which  I  have  given  I  think  that  the  decision  of  the 
learned  judge  was  in  substance  correct.    Ij  it  be  necessary  to  add  Sin- 

p1;^iV  ^g    Q    p]^\r,uff^   ;n    nrrl^r  trx   nrpf  rw^rpr   ^f^y   teclinical    diffJCultV.    I   thiuk 

that  should  be.  dnn^. 


Ch.  1)  *  MODE  OF  CONVEYANCE  199 

Farwell,  L.  J.     This  is  in  form  an  action  of  trespass,  but  it  is 
agreed  that  the  only  question  really  involved  is  whether  the  plaintiff. 
Zick  is  entitleg  to  compensation^!    In  March,  1905,  an  agreement  was 
made  under  which  Sinclair  became  tenant  of  the  premises  in  question 
for  a  term  of  three  years  from  March  14  at  a  yearly  rent  of  £30.     In 
May  of  the  same  year  notice  to  treat  in  respect  of  the  premises  was       /    v^-^^-t^ 
served  on  the  lessor's  agemf    After  service  of  that  notice  the  lessors      /      " 
could  create  no  new  interest  in  the  premises  sn  as  to  throw  any  fresh      >  .^^-^^-t-^-^ 
burden  on  the  defendants.     In  ignorance  of  the  notice  to  treat  Sin-      * 
clair  sold  to  the  plaintiff  his  interest  in  the  premises.     Upon  his  in- 
forming the  lessors'  agent  that  he  wished  to  transfer  his  interest,  _he 
and  the  plaintiff  and  the  lessors'  ao^pnt  rame  to  the  conclusion,th^t  the 
better  arrangement  would  be  that  the  old  tenancy  should  be  surrender- 
ed and  a  new  one  created  for  a  longer  term,  which  was  accordingly- 
done  by  the  agreement  dated  February  14.  1906.    That  agreement  the 
defendants  were  entitled  to  treat  as  void,  and  they  did  so  treat  it.    The 
law  is  laid  down  by  Coleridge,  J.,  in  Doe  v.  Courtenay  (1848)  11  Q.  B.  7^ 

688,  at  p.  712,  "that,  where  the  new  lease  does  not  pass  an  interest  "f/,  ^  , 
according  to  the  contract,  the  acceptance  of  it  will  not  operate  a  sur- 
render of  the  former  lease ;  that,  in  the  case  of  a  surrender  implied 
by  law  from  the  acceptance  of  a  new  lease,  a  condition  ought  also  to 
be  understood  as  implied  by  law,  making  void  the  surrender  in  case  the 
new  lease  should  be  made  void ;  and  that,  in  case  of  an  express  sur- 
render, so  expressed  as  to  shew  the  i;itention  of  the  parties  to  make  the 
surrender  only  in  consideration  of  the  grant,  the  sound  construction  of 
such  instrument,  in  order  to  effectuate  the  intention  of  the  parties, 
would  make  that  surrender  also  conditional  to  be  void  in  case  the  grant  . 
should  be  made  void."  If  the  learned  judge  in  the  Court  below  has  not 
expressed  himself  quite  in  the  same  terms,  I  think,  by  what  he  said  on 
p.  616  of  the  report  in  the  Law  Reports,  he  meant  the  same  thing.  I 
do  not  think  that  he  meant  to  say  that  the  agreement  for  the  new  ten- 
ancy might  be  remodeled,  so  as  to  make  the  term  co-extensive  with  the 
remainder  of  the  term  under  the  original  tenancy,  but  that  he  acted  on 
the  well-established  rule  that,  where  a  new  lease  is  granted  on  the 
footing  that  an  old  lease  is  surrendered,  upon  the  avoidance  of  the  new 
lease  the  surrender  is  void,  the  consideration  for  it  having  failed.  1 
agree  that  this  appeal  should  be  dismissed.''* 

24  See  Knight  v.  Williams,  [1901]  1  Ch.  256. 


t 


200  DERIVATIVE' TITLES  *         (Part  2 

SCHIEFFELIN  v.  CARPENTER. 

(Supreme  Court  of  New  York,  1S3G.     15  Weud.  400.) 

This  was  an  action  of  covenant,  tried  at  the  New  York  circuit  in 

April,  1834,  before  the  Hon.  Ogden  Edwards,  one  of  the  circuit 
judges. 

The  plaintiff  declared  on  a  lease  under  seah  made  by  him  to  Ed- 
mund T.  Carpenter,  bearing  date  1st  April,  1829,  demising  a  dwelling 
house  and  lot  of  ground  of  5%  acres,  situate  in  the  twelfth  ward 
of  the  city  of  New  York,  for  the  term  of  six  years,  subject  to  an 
annual  rent  of  $325,  to  be  paid  quarterly.  The  lease  was  a  tripartite 
indenture,  Daniel  S.  Hawkhurst  and  Daniel  Carpenter  being  parties 
thereto,  and  unking  with  the  tenant  in  the  covenants  to  be  perfomied 
on  his  partj^  and  they  were  joined  as  defendants  in  the  suit  with  the 
tenant.  The  defendants,  amongst  other  things,  covenanted  for  the  pay- 
ment of  the  rent:  that  the  tenant  should  during  the  term,  keep  the 
dwelling  house,  fences  and  every  part  of  the  demised  premises  in  good 
condition  and  repair,  and,  at  the  expiration  of  the  term,  yield  them 
up  in  like  good  repair ;  that  he  would  not  remove,  injure  or  destroy 
any  root,  plant,  bush  or  tree  growing  on  the  premises,  or  suffer  the 
same  to  be  done;  that~4ie  would  not  underlet  or  assign  the  premises, 
either  directly  OT'lSy-^aperation  of  law,  without  the  written  consent  ol 
the  landlord :  and  that  during  the  term,  the  dwelling  house  should  not 
be  occupied  as  a  public  house,  inn  or  tavern^  without  the  like  written 
consent.  The  plaintiff  assigned,  as  breaches  of  the  covenants:  1.  That 
on  the  1st  July,  1833,  there  was  one  year's  rent  in  arrear  and  unpaid ; 
2.  That  on  the  1st  January,  183f,  the  tenant  perrnitted  the  dwelling 
house  and  fences,  i&c,  to  fall  into  bad  condition,  and  to  become  ruinous 
and  to  decay  for  the  want  of  necessary  repairs,  and  so  permitted  them 
to  remain  until  the  commencement  of  the  suit;  3.  That  on  the  1st 
January,  1831,  he  suffered  fruit  trees,  gooseberry  bushes,  asparagus 
roots,  and  ornamental  flowering  plants  growing  on  the  premises  to  be 
lopped,  uprooted,  removed  and  destroyed  by  persons  and  animals; 
4.  That  from  1st  November,  1832,  until  1st  June,  1833,  the  dwelling 
house  was  used  and  occupied  as  a  public  house,  without  the  consent 
of  the  plaintiff.  The  defendants  pleaded  the  general  issue,  and  gave 
notice  of  various  matters  to  be  proved  on  the  trial. 

On  the  trial  of  the  cause,  the  plaintiff  claimed  to  recover  the  rent 
of  a  quarter  of  a  year,  ending  1st  July,  1833,  and  damages  for  breaches 
of  the  covenants  to  keep  the  premises  in  repair,  and  not  injure  them, 
&c.  The  plaintiff  proved  that  the  premises  were  in  good  repair  at  the 
date  of  the  lease,  and  when  the  tenant  went  into  possession ;  and  that 
in  February,  1833,  the  dwelling  house  was  in  a  ruinous  state,  the  fences 
prostrated,  and  the  garden  wholly  destroyed,  and  that  the  expense 
of  putting  the  premises  in  repair  would  be  between  $400  and  $500^  He 
also  proved  that  the  premises  had  been  occupied  tor  a  year  by  two  men 


Ch.  1)  MODE  OF  CONVEYANCE  -     201 

of  the  name  of  Wood  and  Matthews,  who  were  rail-road  contractors, 
and  had  many  persons  in  their  employ  who  resided  on  the  premises. 
The  defendant  offered  to  prove  that  the  plaintiff  held  the  demised 
premises  onlv  in  rio'ht  of  his  wife,  and  insisted  that  inasmuch  as  an 
action  of  waste  might  be  brought  in  the  name  of  the  husband  and  wife 
in  the  character  of  reversioners,  the  claim  of  damages  for  injury  to 
the  demised  premises  ought  not  to  be  sustained  in  the  present  suit ;  the 
evidence  was  rejected  by  the  judge.  The  defendants  also  offered  to 
prove  that  in  tlje  autumn  of  1831,  an  agreement  was  entered  into  be- 
tween the  plaintiff,  the  defendant  Edmund  T.  Carpenter  and  two  per- 
sons  of  the  names  of  Mills  and  Owen,  that  Carpenter  should  quit  and 
surrender  up  the  premises  to  the  plaintiff,  that  the  lease  declared  on 
should  be  delivered  up  and  cancelled,  and  a  new  lease  of  the  premises 
should  be  executed  bv  the  plaintiff  to  Mills  and  Owen  for  the  term 
of  8  or  10  years.  That  in  pursuance  of  such  agreement.  Carpenter,  in 
the  autumn  of  1831,  surrendered  up  the  premises  to  the  plaintiff,  and 
paid  all  the  rent  then  due  to  the  plaintiff,  and  Mills  and  Owen  took 
possession  of  the  premises  and  occupied  the  same  pursuant  to  such 
agreement  as  tenants  to^he  plaintiff',  .who  accepted  them  as  such,  and 
received  rent  from  thcnrL  That  Mills  and  Owen  occupied  the  premises 
until  the  autumn  of  1832,  when  they  left,  and  were  succeeded  in  the 
possession  by  Wood  and  Matthews,  to  whom  also  the  premises  were 
let  by  the  plaintiff,  and  from  w^hop  he  akn  rereived  rent:  these  facts 
the  defendant  offered  to  establish  by  parol  proof.  The  counsel  for 
the  plaintiff  objected  that  parol  evidence  of  the  alleged  agreement  or 
surrender  of  the  lease  was  inadmissible ;  and  also  that  the  evidence, 
if  intended  to  be  urged  in  discharge  of  the  covenants,  ought  not  to  be 
received,  for  the  reason  that  a  covenant  cannot  be  discharged  by  parol  J^  ^ 
before  breach.  The  judge  sustained  the  objection.  The  defendants 
then  proved  that  Mills  and  Owen  went  into  possession  of  the  premises 
on  the  1st  November,  1831,  and  that  previous  to  their  entry,  Edmund 
T.  Carpenter  (the  tenant)  put  the  premises  in  as  good  repair  as  they 
were  in  when  he  entered;  they  were  thus  repaired,  because  Mills  and 
Owen  were  to  take  possession.  The  plaintiff,  on  being  spoken  to  on 
the  subject,  said  that  he  was  satisfied  with  the  repairs,  if  Mills  and 
Owen  were  satisfied.  It  was  also  proved,  that  after  Mills  and  Owen 
quit  the  premises,  they  were  occupied  by  Wood  and  Matthews,  who 
had  a  large  number  of  men  in  their  employment  as  laborers  on  a  rail- 
road and  housed  on  the  premises.  Wood  and  Matthews  were  in  pos- 
session six  months,  and  paid  rent  to  the  plaintiff. 

The  counsel  for  the  defendants  insisted  that  the  plaintiff  was  not 
entitled  to  recover  in  this  action  more  than  nominal  damages  for  the 
breach  of  the  covenant  to  keep  the  premises  in  repair,  and  for  the  in- 
jury done  to  the  premises,  as  the  tenant  might  put  the  premises  in 
complete  repair  before  the  end  of  the  term,  and  if  he  did  so  the  plain- 
tiff would  have  no  cause  of  complaint;  if  he  did  not  do  so,  then  the 
plaintiff'  would  be  entitled  to  bring  his  action,  and  to  recover  damages^ 


202  DERIVATIVE  TITLES  (Part  2 

and  requested  the  judge  so  to  charge  the  jury.  The  judge  declined  to 
do  so,  and,  on  the  contrary,  charged  the  jury  that  the  plaintiff  was 
entitled  to  his  verdict  for  one  quarter's  rent,  (which  was  admitted  to 
be  all  that  was  due  at  the  bringing  of  the  suit;)  and,  further,  that 
they  were  not  bound  to  limit  their  verdict  on  the  covenant  of  repairs 
to  nominal  damages  but  might  give  such  sum  as,  under  all  the  cir- 
cumstances, they  should  consider  the  planititf  entitled  to  recover,  pcu- 
vided  thev  were  satisfied  that  the  defendants  had  violated  their  cove- 
nants. The  jury  found  a  verdict  f^-tli£^laiiit2ff_\vith  $481,25  dam- 
ages.  The  defendants  ask  for  a  new  trial.  The  cause  was  submitted 
on  written  arguments. 

Nelson,  J.     This  case  has  been  elaborately  argued  upon  paper  by 

the  respective  counsel,  and  all  the  authorities  and  principles  bearing 

upon  the  points  disputed,  have  been  referred  to  and  examined ;    and 

were  it  not  for  some  recent  cases  in  the  English  courts,  that  are  very 

confidently  urged  by  the  defendant's  counsel,  it  seems  to  me  there 

would  be  but  little  difficulty  in  disposing  of  the  case.     A  surrender 

J  is  defined  to  be  a  yielding  up  of  an  estate  for  life  or  years  to  TTmT 

^  who  hath  the  immediate  estate  in  reversion  or  remainder,  wjierein  the 

fstate  for  hte  or  years  may  drown  by  mutualagreemegt.     Comyn's 

Landlord  &  Tenant,  ZZ7 ;   2  Co.  Litt.  ddi;   ^  (^ruise,  i5d;   4  Bacon's 

Abr.  209;    Shep.  Touch.  300,  307.     Before  the  statute  of  frauds  and 

Jj/0  /•  perjuries,  any  form  of  words  without  writing,  whereby  an  intention  ap- 

»/i>*''^*^Z^   \  peared  to  surrender  up  the  possession  of  the  premi'^pc;  tn  tlip  1p':;(;;nr 
L^"^         I  or  reversioner,  was  sufficient  for  that  purpose.     This  was  called  a 

"a)  surrender  in  fact.    There  was  also  a  surrender  in  law.    It  was  effected 

i'by  the  acceptance  of  a  new  lease  of  the  premises  from  the  lessor,  for 
the  whole  or  a  part  of  the  time  embraced  in  the  former  one,  because 
it^  necessarily  implied  a  determination  and  surrender  of  that  lease ; 
otlierwise  the  lessor  would  be  unable  to  make^the  second,  or  the  lessee 
to  enjoy  it,  and  it  was  therefore  but  reasonable  to  presume  both  par- 
ties intenHed  to  waive  and  relmquish  the  benefit  of  the  first  one.  The 
second  lease  before  the  statute  referred  to,  of  course  need  not  have 
been  in  writing  to  operate  an  effectual  surrender  of  the  first  one.  The 
statute  of  29  Car.  enacted  "that  all  leases,  estates,  interests  of 
freehold  or  terms  of  years,  or  any  uncertain  interests  of,  in,  to 
or  out  of  any  lands,  &c.  made  or  created  by  livery  and  seizin  only,  ^ 
by  parol,  and  not  put  in  writing,  &c.  shall  have  the  force  and  effect  of 
leases  or  estates  at  will  only,"  &c.  excepting  leases  not  exceedmg  tJie 
term  of  three  years  from  the  making  thereof.  And  also,  "no  leases, 
estates  or  interest  either  of  freehold  or  term  of  years,  or  anv  uncertain 
interest,  &c.  oi,  in,  to  or^out  ot  any  messuages.  &c.  shall  be  assigned. 
granted  or  surrendered,  unless  by  deed  or  note,  in  writing,  or  operation 
of  law."  Our  statute  (2  R  S.  [1  St.  Ed.]  p.  134,  sec.  6)  provides 
that  "no  estate  or  interest  in  lands,  other  than  leases  for  a  term  not 
exceeding  one  year,  &c.  shall  hereafter  be  created,  granted,  assigned, 
surrendered,  &c.  unless  by  act  or  operation  of  law,  or  by  deed  or  cun- 


Ch.  1)  MODE   OF  CONVEYANCE  203 

veyance  in  writing-"  &c.  Sec.  8.  "Every  contract  for  the  leasing  for 
a  longer  period  than  one  year.  &c.  shall  be  void,''  unless  in  writing. 
S^nce  these  statutes,  a  parol  lease  in  England  for  more  than  three 
years,  and  in  this  state  for  more  than  one,  is  entirely  void ;  though  if 
the  tenant  enters  into  possession,  he  shall  be  deemed  a  tenant  at  will, 
and  for  the  purpose  of  notice  to  quit,  from  year  to  year,  and  notwith- 
standing the  lease  be  void,  it  may  regulate  the  terms-  of  hol^jng-^s  to 
rent,  time  to  quit.  &c.  5  T.  R.  471 ;  Comyn's  L.  &  T.  8:  Woodf.  14, 
15;  Bradley  v.  Covell,  4  Cow.  350;  Jackson  ex  depi.  Church  v. 
Miller,  7  Cow.  747.  But  as  a  lease  for  the  purposes  for  which  it  was 
given,  it  is  considered  wholly  void.  It  is,  however,  conclusively  settled 
by  authority,  that  the  second  lease  must  be  a  valid  one,  so  as  to  convey, 
the  interest  it  professes  to  convey,  to  the  lessee,  and  also  to  bind  him  to  "j^ 

the  performance  of  the"  covenant  or  agreement  in  favor  of  the  lessor, 
in  order  to  operate  as  an  effectual  surrender  of  the  hrst  one.  ■!i  Burr. 
1807;  4  Burr.  1980,  2210;  6  East.  86;  Comyn's  Dig.  tit.  Estate,  g.  13 ; 
4  Bac.  Abr.  215.  Without  this,  the  reason  before  given  for  the  im- 
plied surrender  would  fail,  and  the  intent  of  the  parties  be  altogether 
defeated.  Instead  of  being  but  a  surrender  of  the  first  lease,  it  would 
be  a  surrender  of  the  whole  estate  and  interest  in  the  premises,  and 
a  virtual  determination  of  the  existence  of  any  tenancy.  Now  the 
ground  upon  which  the  surrender  jn  this  case  is  mainly  argued  is,,  not 
that  a  new  lease  was  given  to  the  original  lessee,  but  that  it  was  given 
to  JMills  and  Owen  with  his  consent,  for  the  period  of  eight  or  ten 
years.  Assuming  this,  amounts  to  the  same  as  if  given  to  Carpenter; 
it_is^  impossible  to  rnaintain  that  any  valid^  lease  lias  been  proved  in  the 
case,  or  any  lease  whatever  for  aUefinite  period.  The  most  that  was 
offered  to  be  proved  was,  that  Mills  and  Owen  went  into  possession 
with  the  consent  of  the  defendants,  under  a  parol  agreement  for  a  lease 
for  eight  or  ten  years ;  ajid  if  it  be  viewed  as-  an  agreement  for  a  lease. 
or  as  a  virtual  lease  for  that  time^  it  is  void  under  fhp  t;tatntp,  nnd  rnnld 
not  be  enforced  by  either  of  the  parties.  An  iniplied  tenancy  at  will 
onhLwas  created,  which  enabled  Mills  and  Owen  to  hold  trom'year  t o 
):ear^ror  the  purpose  of  notice  to  quit,  but  which  they  could  terminate 
at  any  moment  they  pleased.  The  agreement  and  entry  in  pursuance 
of  it  conferred  no  rights  upon  the  plaintiff,  further  than  to  recover 
his  rent  while  they  continued  to  occupy,  and  perhaps  a  quarter's  rent, 
if  they  abandoned  the  occupation  after  the  commencement  of  a  quarter 
and  before  its  termination. 

Suppose  this  agreement  had  been  made  with  the  original  tenant, 
and  the  defendants  can  claim  no  more  from  it  as  offered  to  be  proved, 
could  it  be  contended  that  it  operated  as  a  virtual  surrender  of  the  lease 
for  six  years,  and  that  the  plaintiff  could  dispossess  the  tenant  on 
giving  six  months  notice  to  quit?  This  would  be  the  consequence  of 
the  doctrine  urged  in  the  defence.  The  tenant  would  become  a  mere 
tenant  at  will.  TIie_authoritii"s  alr^n^jj,^  ^pfprrpH  tn  ([-lenrly  establish 
that  the  second  lease,  to  have  the  effect  claimed,  must  pass  the  inj^r- 


204:  DERIVATIVE  TITLES  (Part  2 

est  in  the  premises  according^  to  the  contract^  or  in  other  words,  carry 
into  legal  effect  the  intent  of  the  parties  executing  it  3  Burr.  1807; 
4  Burr.  1980,  2210;  Comyn's  Dig.  tit.  Estate,  8,  12;  6  East,  661 ;  Van 
Rensselaer's  Heirs  v.  Penniman,  6  Wend.  569 ;  1  Saund.  236,  n.  b.  It 
is  stated  by  Baron  Gilbert,  4  Bacon's  Abr.  210,  that  since  the  statute  of 
frauds  the  new  lease  must  be  in  writing  in  order  to  operate  as  an 
implied  surrender  of  the  old  one,  for  it  is  then  of  equal  notoriety 
with  a  surrender  in  writing.  This  position  is  also  adopted  by  Ser- 
jeant Williams,  in  his  notes  upon  the  case  of  Thursby  v.  Plant,  1 
Saund.  236,  n.  b.  But  as  surrenders  by  operation  of  law  are  expressly 
excepted  out  of  the  statute,  as  a  necessary  consequence  they  are  left 
as  at  common  law ;  and  there  it  is  clear  it  need  not  be  in  writing  to 
have  the  effect  to  surrender  the  old  one,  even  if  by  deed.  2  Starkie's 
Sv.  342;  20  Virrer,  143,  L.,  pi.  1,  n. ;  1  Saunders,  236,  n.  c.  I  am  in- 
clined therefore  to  think  that  a  valid  parol  lease,  since  the  statute,  might 
produce  a  surrender  in  law  within  the  reason  and  prmciple  upon  whi^h 
this  doctrme  is  founded.  The  jtrU-?-  L^^  seems  to  be  that  laid  down 
by  Mr.  Starkie,  2  Starkie's  Ev.  342,  as  follows:  The  taking  a  new 
lease  by  parol  is  by  operation  of  law  a  surrender  of  the  old  one,  al- 
though it  be  by  deed,  provided  it  be  a  good  one,  and  pass  an  interest 
according  to  the  contract  and  intention  of  the  parties ;  for  otherwise 
the  acceptance  of  it  is  no  implied  surrender  of  the  old  one. 

If  the  first  lease  in  this  case  has  not  been  surrendered,  then  there  is 
no  ground  of  defence  against  the  action  upon  the  express  covenants 
contained  in  it,  even  if  we  should  concede  a  legal  assignment  from 
the  tenant  to  Mills  and  Owen,  and  the  acceptance  of  them  expressly 
or  impliedly  by  the  plaintiff.  4  T.  R.  98,  100;  1  Saund.  241,  n.  5; 
Woodf.  278;  Cro.  Car.  188;  Comyn's  Land.  Si  Tenant,  275,  and  cases 
there  cited.  But  the  plaintiff  stipulated  against  assignment  or  under- 
etting  unless  permission  was  given  in  writing;  and  a  parol  license  is 
therefore  inoperative.  2  T.  R.  425;  3  T.  R.  590;  3  Madd.  218; 
Piatt  on  Cov.  427.  This  clause  in  a  lease  would  be  nugatory,  if  courts 
should  allow  parol  evidence  to  control  in  the  matter.  Besides  a  parol 
assignment  is  void  under  the  statute  of  frauds.  The  case  of  Thomas 
V.  Cook,  2  Starkie's  R.  408,  is  supposed  to  have  a  strong  bearing  upon 
this  one.  In  that  case  there  was  a  parol  lease  from  year  to  year  to 
Cook,  who  under-let  to  Parkes.  The  rent  being  in  arrear,  Thomas 
distrained  upon  him,  and  he  paid  it  by  a  bill  of  exchange ;  on  receiving 
which  he  declared  he  would  have  nothing  more  to  do  with  Cook. 
Afterwards,  however,  he  brought  his  action  against  him  for  rent  then 
due.  For  the  plaintiff  it  was  insisted  that  there  was  no  surrender 
within  the  statute  of  frauds.  Abbott,  C.  J.,  left  it  to  the  jury  to  say, 
whether  the  plaintiff  had  not  accepted  Parkes  as  his  tenant,  with  the 
assent  of  Cook;  and  the  jury  finding  in  the  afffrmative,  the  plaintiff 
was  nonsuited.  The  court  at  the  ensuing  term,  when  the  case  was 
moved,  were  of  opinion  there  was  a  surrender  by  operation  of  law. 
They  say  if  a  lessee  assign  and  the  lessor  accept  the  assignee  of  the  les- 


Ch.  1)  MODE   OF  CONVEYANCE  205 

see  as  his  tenant-  that  in  point  of  law  puts  an  end  to  the  privity  of 
estate.,  and  an  action  of  debt  cannot  be  brought  to  recover  the  rent. 
That  I  admit  to  be  true,  but  if  the  lease  had  been  in  writing,  according 
to  the  cases  above  cited,  a  suit  might  still  be  maintained  upon  the  ex- 
press covenant  in  it,  though  the  privity  of  estate  was  gone.  Besides, 
the  assignment  was  void  as  such  under  the  statute  of  frauds.  1  Campb. 
318;  5  Bing.  25;  Comyn's  Land.  &  Ten.  55,  and  cases  there  cited; 
Woodf.  277.  A^ain.  the  court  say  it  is  a  rule  of  law,  that  the  accept- 
ance of  a  subsequent  lease  by  parol  operates  as  a  surrender  of^g. 
former  lease  by  deed._  That  is  true  under  the  circumstances  we  have 
before  endeavored  to  explain,  and  is  undoubtedly  the  legal  ground  upon 
which  that  case  may  be  maintained.  The  case  sufficiently  shows  that 
the  implied  parol  demise  to  Parkes  was  a  valid  one  to  the  extent  in- 
tended by  both  parties;  the  one  to  Cook  was  a  lease  from  year  to 
year,  and  the  acceptance  of  Parkes,  as  tenant  in  his  place,  impliedly 
gave  him  the  same  tenure  and  term ;  no  writing  was  necessary  for  that 
purpose.  This  is  the  ground  upon  which  the  case  is  said  to  stand  by 
the  court,  in  commenting  upon  it  in  a  subsequent  term,  4  Barn.  & 
Cres.  922. 

In  the  case  of  Grimman  v.  Legge,  8  Barn.  &  Cres.  324,  the  lease  was 
by  parol  for  one  year,  for  the  first  and  second  floor  of  a  house,  a  dis- 
pute having  arisen  before  the  end  of  the  year,  the  tenant  said  she 
would  quit.  The  landlord  said  he  would  be  glad  to  get  rid  of  her. 
She  accordingly  left  the  premises,  and  possession  was  taken  by  him. 
The  facts  were  submitted  to  the  jury,  to  presume  a  rescindment  of  the 
original  contract  between  the  parties.    The  case  of  Stone  v.  Whiting, 

2  Starkie,  235,  is  precisely  like  the  case  of  Thomas  v.  Cook,  and  stands 
upon  the  same  principle.  In  the  case  of  Whitehead  v.  Clifford,  5 
Taunt.  518,  the  lease  was  by  parol  from  year  to  year,  and  stands  upon 
the  footing  of  Grimman  v.  Legge.    In  the  case  of  Hamerton  v.  Stead, 

3  Barn.  &  Cres.  478,  a  tenant  from  year  to  year  entered  into  an  agree- 
ment in  writing  for  a  lease  to  him  and  another,  and  from  that  time 
both  occupied.  It  was  held  that  the  new  agreement,  coupled  with  the 
joint  occupation,  determined  the  former  tenancy,  and  operated  as  a 
surrender  in  law,  though  the  lease  contracted  for  was  never  granted. 
If  the  new  agreement  and  occupation  were  viewed  as  a  tenancy  from 
year  to  year,  which  was  of  equal  tenure  with  the  first  lease,  there  was 
at  least  no  hardship  in  this  decision.  The  judges  obviously  were  some- 
what embarrassed  in  their  endeavors  to  place  the  case  upon  princi- 
ple, and  some  of  their  observations  conflict  with  the  case  in  6  East,  86, 
which  they  admitted  to  be  good  law.  The  first  case  was  by  parol  from 
year  to  year,  and  might  well  have  been  put  upon  the  footing  of  the 
cases  to  which  I  have  referred,  where  the  facts  were  submitted  to  the 
jury  to  find  the  first  contract  rescinded. 

The  jaw  seems  to  be  well  settled,  that  under  a  coveng^nt  to  repair 
like  the  one  in  question,  the  landlord  need  not  wait  tjll^.the  expiration 
of  the  term  before  bringing^  an  action  for  the  breacfi,' under  an  idea 


206  DERIVATIVE  TITLES  (Part  2 

that  the  tenant  mav.  before  he  leaves  the  premises,  put  them  in  gox)d 
condition  1  Barn.  &  Aid.  584;  2  Ld.  Raym.  803,  1125;  1  Salk.  141; 
Piatt  on  Cov.  289;  Comyn's  Land.  &  Ten.  210.  If  the  covenant  was 
only  to  leave  the  premises  in  as  good  a  condition  as  the  tenant  found 
them,  it  seems  an  action  would  not  lie  till  the  end  of  the  term.  Shep. 
Touch.  173;    Piatt  on  Cov.  289. 

The  defendant  cannot  question,  in  this  action,  the  title  of  the  land- 
lord. ,  The  action  is  upon  an  express  covenant  between  the  parties, 
and  the  suit,  if  sustained  at  all,  must  be  by  the  plaintiff  alone. 

New  trial  denied.  ^  j 

' ;  r  •-'  1.  ' 

WHITEHEAD  v.  CLIFFORD. 

(Court  of  Common  Pleas,  1814.     5  Taunt.  518.) 

This  was  an  action  for  the  use  and  occupation  of  a  house,  which  was 
tried  at  the  Middlesex  sittings  after  last  Michaelmas  term,  before 
Mansfield,  C.  J.,  when,  after  the  Plaintiff  had  proved  that  the  Defend- 
ant had  been  tenant  from  year  to  year  of  the  Plaintiff's  house,  the  De- 
fendant proved  a  parol  agreement,  that  the  Plaintiff  would  give  up  his 
claim  to  the  rentj_on  the  Defendant's  giving  up  immediate  possession 
in  the  middle  of  the  quarter:  both  parties  accordingly  went  before  a 
magistrate,  and  the  Defendant  then  gave  up  the  key,  which  the  Plain- 
tiff" accepted,  and  the  Defendant  was  never  after  that  time  in  the  pos- 
session of  the  premises.  The  Plaintiff  sought  to  recover  for  a  time 
stjbsequent  to  his  resuming  the  key ;  and  he  insisted  that  the  tenancy 
was  not  thereby  determmed,  by  reason  of  the  statute  of  frauds;  and 
cited  Mollet  v.  Brayne,  2  Camp.  103.^-'^  Mansfield,  C.  J.,  reserved  the 
question,  subject  whereto  the  jury  found  a  vjerdict  for  the  Defendant. 

Best,  Serjt.,  in  Hilary  term,  1814,  had  obtained  a  rule  nisi  to  set 
aside  this  verdict,  and  enter  a  verdict  for  the  Plaintiff. 

GiBBs,  C.  J.  The  clause  of  the  statute  of  frauds  v>diich  restricts  es- 
tates created  by  parol,  to  three  years,  has  nothing  to  do  with  that 
which  requires  surrenders  to  be  in  writing.  In  Mollet  v.  Brayne  both 
parties  did  not  act  on  the  parol  notice  to  quit,  but  the  tenant  only.  The 
present  action  can  never  succeed.    The  action  for  use  and  occupation 

25  In  the  case  cited  the  defendant  had  been  in  possession  as  tenant  under  a 
yearly  rent  for  several  months  when  a  dispute  arose  between  him  and  the 
lessor;  the  defendant  threatening  to  quit  the  premises,  the  lessor  said, 
"You  may  quit  when  you  please."  The  defendant  accordingly  left  a  few  days 
later.  The  lessor  sued  for  rent  accrued  after  defendant  quitted  the  premises. 
The  defendant  tendered  the  rent  accrued  up  to  a  day  after  he  had  left. 
"Lord  Ellenborough  was  of  opinion  that  the  tenancy  was  not  determined 
merely  by"  the  landlord  giving  the  tenant  a  parol  ncense  to  quit,  and  the  teji.- 
ant  quitting  accordingly^  At  the  time  tuere  was  a  subsisting  term  in  the 
premises,  and  tue  statuTe  of  frauds  (St.  29  Car.  II,  c.  3,  §  3)  provides  that  no 
lease  or  term  of  years,  or  any  uncertain  interest  *  *  »  shall  be  s!ur- 
renaered,  unless  py  d^tJU  or  UOt^  ih  writing,  oi-  by  act  and  operation  of  1^. 
ilere  there  was  no  aeea  or  note  in  writing,  and  nothing  is  proved  which  can 
be  considered  a  surrender  by  operation  of  lavy"  (ISOSJI 


Ch.  1)  MODE   OF  CONVEYANCE  207 

depends  either  upon  actual  occupation,  or  upon  an  occupation  which 
the  Defendant  might  have  had,  if  she  had  not  voluntarily  abstained 
from  it.  Here  the  Plaintiff  himself  takes  possession  of  the  house, 
and  makes  the  profit  of  the  premises ;  and  it  was  therefore  impossible 
for  the  Defendant,  during  the  same  time,  to  have  used  and  occupied 
the  premises,  if  she  would.  As  to  the  case  in  Campbell,  it  is  very- 
different  from  this,  and  we  do  not  throw  out  any  opinion  against  it; 
but  when  the  like  circumstances  arise,  it  will  be  proper  to  consider 

Rule  discharged.^  °  -         .       d    /4:^i^l±fr^f'*^ ' 


THOMAS  V.  COOK. 

(Court  of  King's  Bench,  ISIS.     2  Barn.  &  Al 

Action  for  use  and  occupation.  At  the  trial  of  this  cause  at  the 
London  sittings  after  Trinity  term  before  Abbott,  J.,  it  appeared  that 
the  plaintiff  had  originallv  let  the  premises_^  consisting  of  a  house  in 
Long-L.ane  to  the  defendant^  as  tenant  from  year  to  year.  After  he 
had  resided  tliere  for  some  time,  the  defeqd^pt  underlet  them  to  one 
Perkes.  commencing  at  Christmas  1816.  At  Lady-Dav  1817.  defend.- 
a^  dji^trained  pprke's  goods  for  rent  in  arrear.  Rent  being  then  due 
f rom  the  defendant  to  Thnmas,  the  latter  gave  notice  to  Perkes  no t 
to  pay  the  rent  to  the  defendant,  but  to  him :  and  upon  Cook's  refus- 
ing to  take  Perke's  bill  for  the  amount  then  due,  the  plaintiff  agreed 
to  take  it  himself  in  payment  of  the  rent  due  from  Cook  to  him,  say- 
ing that  he  would  not  have  any  thing  further  to  do  with  Cook.  j\nd 
afterwards^  in  October.  1817.  the  plaintiff  himself  distrained  the  goods 
of  Perkes  for  rent  in  arrear.  The  jury  found,  by  the  direction  of 
the  learned  Judge,  a  verdict  for  the  defendant,  on  the  ground  that 
Thomas  had,  with  the  assent  of  Cook,  accepted  Perkes  as  his  tenant  of 
the  premises. 

Topping  moved  for  a  new  trial.  By  the  third  section  of  the  Stat- 
ute of  Frauds,  "No  lease  or  term  of  years  or  any  uncertain  interest  of  I 
or  in  any  messuages,  lands,  tenements,  or  hereditaments,  shall  bej 
surrendered  unless  by  deed  or  note  in  writing."  Now  the  utmost  that 
appeared  on  the  trial  was  a  parol  surrender  by  Cook  of  his  interest 
in  the  premise^,  and  in  Mollett  v.  Brayne,  2  Campb.  103,  it  was  held 
by  Lord  Ellenborough  that  a  tenancy  from  year  to  year  could  not  be 
determined  by  a  parol  license  from  the  landlord  to  the  tenant  to  quit, 
and  the  tenant's  quitting  accordingly.  The  same  point  was  ruled  in 
Doe  v.  Ridout,  5  Taunt.  519.    Then  if  this  surrender  be  void  the  case 

26  See  Phene  v.  Popplewell.  12  C.  B.  (N.  S.)  334  (1862) ;  Millis  v.  Ellis,  109 
Minn.  81,  122  N.  W.  1119  (1909).  Cf.  Oastler  v.  Henderson,  2  Q.  B.  D.  575 
nc77^  :  Newton  v.  Speare  Laundering  Co.,  19  R.  I.  516,  37  Atl.  11  (1S96) ; 
Smith  V.  Hunt,  32  R.  I.  326,  79  Atl.  826,  35  L.  R.  A.  (N.  S.)  1132,  Ann.  Cas 
1912D,  971  (1911). 


208 


DERIVATIVE   TITLES 


(Part  2 


Falls  within  the  autlinn'ty  of  Bull  v.  Sibbs.  8  Term  Rep.  327,  and  the 
plaintiff  is  entitled  to  a  verdict. 

Abbott,  C.  J.  By  the  third  section  of  the  Statute  of  Frauds,  it  is 
'enacted  "That  no  leases,  estates,  or  interests,  either  of  freehold,  terms 
of  years,  or  any  other  uncertam  interest  in  any  messuages,  manors.' 
lands,  tenements  or  hereditaments  shall  be  surrendered,  unless  by 
deed  or  note  in  writing,  or  bv  act  and  operation  of  lawT'  And  the 
question  in  this  case  is,  whether  what  has  been  done  will  amount  to  a 
surrender  by  act  and  operation  of  law.  Now  the  facts  of  the  case 
re  these.  The  plaintiff  Thomas  had  let  the  premises  in  question  to 
the  defendant  as  tenant  from  year  to  year,  and  the  defendant  underlet 
them  to  Perkes.  The  rent  being  in  arrear,  the  defendant,  on  Lady- 
Day  1817,  distrained  the  goods  of  Perkes,  who  having  tendered  a  bill 
in  payment  of  the  rent  which  the  defendant  had  refused  to  receive,  the 
plaintiff  then  interposed,  took  the  bill  in  payment,  and  accepted  Perkes 
as  his  tenant:  and  afterwards  in  October  1817,  himself  distrained  the 
goods  of  Perkes  for  rent  then  in  arrear.  I  left  it  to  the  jury  to  say 
whether  under  these  circumstances  the  plaintiff'  had  not,  witli  the  as- 
sent of  Cook,  accepted  Perkes  as  his  tenant  of  the  premises,  and  the 

\ jury  found  that  fact  in  the  affirmative.  Tjhjnk,  therefore,  this  amnnnt- 
ed  to  a  yalirl  <^^irrpndpr  ^^  Cook's  interest  in  the  premises,  being  a  sur- 
render  by  act  and  operation  of  law.  The  consequeTice  is  that"  the 
plaintiff  can  have  no  claim  for  rent  against  the  present  defendant,  arid 
that  the  verdict  therefore  was  right. 

BaylEy,  J.  If  a  lessee  assigns  over  his  interest,  and  the  lessor  ac- 
cepts the  assignee  as  his  tenant,  the  privity  of  estate  is  thereby  de- 
stroyed, and  on  that  ground  it  is  not  competent  for  the  lessor  to  bring 
debt  agamst  the  lessee.  Where,  indeed,  the  contract  is  by  deed,  there 
he  may  bring  covenant  by  the  Statute  of  Hen.  VIII.  In  this  case,  the 
landlord  has  accepted  Perkes  as  his  tenant,  and  must  be  considered 
to  have  made  his  election  between  Perkes  and  Cook.  And  the  case 
of  Phipps  V.  Sculthorpe,  1  Barn.  &  Aid.  50,  is  an  authority  to  she.w 
that  the  plaintiff  has  no  right  to  recover.  This  was  a  surrender  of 
Cook's  interest  in  the  premises  by  act  and  operation  of  law,  and  the 
j ury  were  quite  rig^ht  in  presuming  that  Cook  harl  agQpntpd_lQ_iJ2^ 
acceptance  of  Perkes  as  tenant  to  the  plaintiff:  for  that  assent  was 
clearly  for  Cook's  ^benefit. 

HoLROYD,  J.  It  appears  from  the  Statute  of  Frauds,  that  a  sur- 
render in  order  to  be  valid,  must  be  either  by  deed  or  note  in  writing 
or  by  act  and  operation  of  law^  In  Mollett  v.  Brayne,  2  Campb.  103, 
there  was  only  a  parol  surrender,  and  no  circumstance  existed  in  that 
case  which  could  constitute  a  surrender  by  act  and  operation  of  law. 
But  injjiia_j:aae,-tbere  is  not  merely  a  declaration  by  the  plainliff,  th_aj- 
he  will  no  longer  consider  Cook  a-^  hi-^  tenant,  hnt  there  is  also  the 
acceptance  by  him  of  another  person  as  the  tenant,  and  that  acceptance 
IS  assented  to  by  Cook.     Now,  if  a  lease  be  granted  to  an  individual, 

•  and  there  be  a  subsequent  demise  of  the  premises  by  parol  to  the  same 


Ch.  1)  MODE   OF  CONVEYANCE  20^ 

person,  that  will  amount  to  a  surrender  of  his  lease.  Then  the  cir- 
cumstances of  Cook  having  first  put  in  another  person  as  undertenant, 
and  having  afterwards  assented  to  a  second  demise  by  the  plaintiff 
to  that  person,  will  in  the  present  case  amount  to  a  virtual  surrender 
of  his  interest  by  act  and  operation  of  law.  Notwithstanding  there- 
fore the  third  section  of  the  Statute  of  Frauds,  I  am  of  opinion,  that 
the  facts  here  found  by  the  iurv  amount  to  a  valid  surrender  of  Cook's 
interest^  and  a  re-demise  of  the  premises  by  the  plaintiff  to  Perkes. 
In  that  case  there  will  be  no  ground  for  disturbing  the  present  verdict. 
Rule  refused.^' 


WALLS  V.  ATCHESON. 
(Court  of  Common  Pleas,  1826.    11  Moore,  379.) 

This  was  an  action  for  assumpsit,  for  use  and  occupation.  The 
cause  was  tried  before  Lord  Chief  Justice  Best,  at  the  sittings  at  West- 
minster, in  the  present  Term. 

The  plaintiff,  a  widow,  let  to  the  defendant  part  of  a  furnished  house 
in  Manchester  Square,  at  the  rent  of  sixty-five  guineas,  for  one  year 
certain,  from  the  14th  of  September^  1824.  The  defendant  quitted  at 
end  of  the  first  quarter,  viz.  on  the  14th  December,  paying  rent  up 
to  that  day.  About  three  weeks  afterwards,  the  plaintiff  let  the  apart- 
ments to. another  person,  at  the  rent  of  one  guinea  per  week.  At  the 
expiration  of  the  second  quarter,  the  plaintiff  sent  in  an  account  to 
the  defendant,  charging  him  for  a  quarter's  rent  according  to  the 
terms  of  the  original  takmg,  deducting  the  sums  received  from^the 
person  to  whom  she  had  re-let  the  apartments,  and  making  the  de- 
fendant debtor  to  her  for  the  sum  of  £7.  5s.  Od. ;  which  sum  the_ de- 
fendant paid.  The  second  tenant  quitted  in  the  beginning  of  July, 
1825,  from  which  time,  until  the  14th  of  December  following,  the 
apartments  remained  vacant.  The  plaintiff  accordingly  brought  this 
action,  to  recover  from  the  defendant,  £21.  Os.  6d.,  the  balance  of  rent 
due  to  her  from  him,  by  the  terms  of  the  original  letting. 

His  Lordship,  being  of  opinion,  that,  by  letting  the^  apartments_to 
another,  the  plaintiff  had  rescinded  the  previous  contract  with  the 
defendant,  directed  a  nonsuit. 

Mr.  Serjeant  Vaughan  now  applied  for  a  rule  nisi,  that  the  nonsuit 
might  be  set  aside  and  a  new  trial  had.     *     *     * 

Lord  Chief  Justice  Best.  By  her  own  act,  the  plaintiff  prevented 
thg^ defendant  from  occupying  these  premises.    She  let  them  to  anoyier 

2  7  See  Walker  v.  Richardson,  2  M.  &  W.  882  (1S37);    Lynch  v.  Lynch,  & 
Ir.  Law  Rep.  131  (1843) ;    Creagh  v.  Blood,  8  Ir.  Eq.  Rep.  688  (1845). 
Cf.  Decker  v.  Hartshorn,  60  N.  J.  Law,  548,  38  Atl.  678  (1897). 
Aig.Prop. — 14 


210  DERIVATIVE  TITLES  (Part  2 

tenant.  Can  a  landlord  have  two  tenants,  and  be  rprpivino-  rent-icnm 
one,  and  at  the  same  time  holding  the  other  liable?  The  case  of  Mol- 
lett  V.  Brayne  is  altogether  distinguishable  from  the  present.  In  White- 
head v.  CHfiford,  5  Taunt.  518,  it  was  held,  that,  if  a  landlord,  in  the 
middle  of  a  quarter,  accept  from  his  tenant  the  key  of  tlie  house 
demised,  under  a  parol  agreement,  that,  upon  her  then  living  up  the 
possession,  the  rent  shall  cease,  and  she  never  afterwards  occupies  the 
premises,  he  cannot  recover,  in  an  action  for  the  use  and  occupation 
of  the  house,  for  the  time  subsequent  to  his  accepting  the  key.  Lord 
Chief  Justice  Gibbs  there  said :  "In  Mollett  v.  Brayne,  both  parties 
did  not  act  on  the  parol  notice  to  quit,  but  the  tenant  only.  The  pres- 
ent action  can  never  succeed.  The  action  for  use  and  occupationjde- 
pends.  either  upon  actual  occupation,  or  upon  an  occupation  whirh  the, 
defendant  might  have  tiad.  jf  sliH  had  not  voluntarr[yabstained-£rom 
i^  Here,  the  plaintiff  himself  takes  possession  of  the  house,  and  makes 
the  profit  of  the  premises ;  and  it  was  therefore  impossible  for  the 
defendant,  during  the  same  time,  to  have  used  and  occupied  the  prem- 
ises, if  she  would."  I  think  both  law  and  justice  are  with  the  defend- 
ant. 

Mr.  Justice  Park.  I  am  of  opinion  that  my  Lord  Chief  Justice 
properly  nonsuited  the  plaintiff;  and  that  there  is  no  colour  for  call- 
ing upon  us  to  disturb  that  nonsuit.  The  case  of  Mollett  v.  Brayne  is 
very  different  from  the  present:  there,  the  tenant  had  a  subsisting 
term,  which  could  not  be  determined  by  a  mere  parol  surrender.  Here, 
the  plaintiff,  by  her  own  act,  rescinded  the  contract  with  the  defend- 
ant, and  dispensed  with  the  necessity  of  a  surrender.  In  Redpath  v. 
Roberts,  the  landlord  had  only  offered  to  let  the  premises,  but  had 
not  in  fact  let  them :  thus  there  was  nothing  to  obstruct  the  defend- 
ant's occupation  of  them,  had  he  been  so  minded.  In  Lloyd  v.  Crispe, 
5  Taunt.  257  the  lessor  having,  by  receiving  rent  from  him,  assented 
to  the  occupation  of  an  assignee,  he  was  held,  by  Sir  James  Mansfield, 
to  have  waived  the  necessity  of  a  license  for  the  subsequent  assign- 
ment, notwithstanding  a  covenant  in  the  lease,  that  the  premises  should 
not  be  assigned  without  the  licence  of  the  lessor.  In  Whitehead  y^ 
Chfford,  the  plaintiff,  the  landlord,  had  accepted  the  key,  and  thus  the 
tenant  was  prevented  from  occupying  tlie  house.  So,  here,  the  con- 
duct of  the  plaintiff  in  re-letting  the  apartments,  signified  as  complete 
an  acquiescence  m  the  tenancy  being  determined,  as  could  be  con- 
veyed  bv  the  acceptance  of  the  key. 

Mr.  Justice  Burrough.  If  the  tenancy  on  the  part  of  the  defend- 
ant in  this  case  were  to  be  considered  a  continuing  tenancy  after  the 
period  at  which  he  ceased  to  occupy  the  premises,  the  letting  of  them 
to  another  person  was,  on  the  part  of  the  plaintiff,  a  tortious  act;  it 
was  in  the  nature  of  an  eviction.  I  think  the  case  discloses  abundant 
evidence  that  the  contract  was  put  an  end  to  with  the  assent  of  lEhe 
pfaintlffherself. 


Ch.  1)                                            MODE  OF  CONVEYANCE  211 

Mr.  Justice  GasEleE.  If  the  plaintiff  had  given  the  defendant 
notice,  that,  if  he  would  not  occupy  tlie  apartments  himself,  she  would 

let  them  to  another  tenant,  on  his  account,  the  case  would  have  been 

different.  Under  the  circumstances,  I  sec  no  reason  for  disturbing 
the  nonsuit. 

Rule  refused.^* 


GRAY  V.  KAUFMAN  DAIRY  &  ICE  CREAM  CO. 

(Court  of  Appeals  of  New  York,  1900.     1G2  N.  Y.  3SS,  56  N.  E.  903,  49  L.  R.  A. 
5S0,  76  Am.  St  Rep.  327.) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  second  judicial  department,  entei^ed  May  5,  1897,  affirm- 
ing a  judgment  in  favor_ol.plaintiff_entered  upon  a  decision  of  the  court 
at  a  Trial  Term,  a  jury  having  beefi  waived. 

'  This  action  was  brought  to  recover  two  months'  rent  of  the  premises 
knn^,vn  ^^Nn  7f^7  Eighth  avenue,  in  llie  rity  nf  New  York.  In  July, 
1893,  the  plaintiff  let  the  said  premises  to  the  defendant  for  ten  years 
from  August  1st,  1893,  at  the  yearly  rental  of  $2,400,  payable  monthly 
in  advance,  and  also  the  extra  water  rent  charged  against  the  defend- 
ant for  its  business.  The  defendant  took  possession  about  July,  1893, 
and  paid  rent  tn  Nnvpmhpr  Kf,  1893,  h'^^  refused  to  pay  for  the  months 
of  November  and  December  of  that  year,  the  rent  of  which  became 
due  and  payable  on  the  first  days  of  those  months  respectively. 

The  answer,  in  effect,  admits  the  making  of  the  lease,  but  denies  any 
indebtedness  under  it  and  sets  up  the  eviction  of  the  defendant,  a_ sur- 
render and  rescission  of  the  lease,  and  claims  credit  for  the  rent  re- 
ceived from  the  undertenant.  On  or  about  the  28th  or  29th  of  October, 
1893,  the  plaintiff  had  a  conversation  with  Mr.  Kaufman,  the  president 
of  the  defendant,  upon  the  demised  premises.  The  plaintiff's  version 
of  this  conversation  is  as  follows  :  "They  were  pulling  up  the  store  and 
the  things,  and  were  going  to  move  out.  They  had  not  said  anything 
to  me  about  moving  out  prior  to  that  time.  I  asked  Mr.  Kaufman 
what  he  was  doing,  pulling  up  the  store.  He  said  he  was  going  to 
move  out,  and  I  asked  him  why,  and  he  said  because  he  couldn't  make 
any  mone}'',  and  I  told  him  that  he  had  a  lease  on  it,  and  that  I  would 
hold  him  responsible  for  the  rent  if  he  went  out.  'Well,'  he  says,  '1 
am  moving  out,  I  don't  want  to  stay  where  I  don't  make  my  rent.' " 
The  defendant  moved  out  and  sent  the  kevs  of  the  store  to  the  plaintiff 
by  mail.     Plaintiff  received  them  about  the  2d  of  November,   1893. 

2  8  See,  also,  Nickells  v.  Ather.stone,  10  Q.  B.  914  (1847);  Haycock  v.  John- 
ston, 97  Minn.  2S9,  106  N.  W.  304,  114  Am.  St.  Rep.  715  (1906);  Rogers  v. 
Dockstader,  90  Kan.  1S9,  133  Pac.  717  (1913);  Hotel  Marion  Co.  v.  Waters 
(Or.)  150  Pac.  S65J1915). 


"212  DERIVATIVE  TITLES  (Part  2 

On  the  3d  of  November,  1893,  plaintiff  served  upon  the  defendant  a 
notice  of  which  the  following  is  a  copy : 

"New  York,  November  3,  1893. 
"To  the  Kaufman  Dairy  &  Ice  Cream  Co. : 

"Yesterdav  I  received  the  keys  of  787  Eighth  Avf^^ii^  ^y  "injl^  I 
hereby  notify  you  that  I  do  not  accept  a  surrender  of  the  premises,  and 


that  1  intendto  hold  y^u  rf'^P'^^'^i^^f-  for  the  rent  under  tlie  lease.  _  I 
shall  let  the  premiseson  your  account,  and  hold  you  for  anv  loss  which 
may  be  sustained. 

"Yours,  etc.,  John  Gray." 

The  defendant  made  no  answer  to  this  notice.  On  the  17tli  of  No- 
vember, 1893,  the  plaintiff  went  to  Kingston  and  saw  Mr.  Kaufman, 
the  president  of  the  defendant,  Mr.  Spore,  the  secretary,  and  a  Mr. 
Bruin.  The  plaintiff  asked  Mr.  Kaufman  for  the  November  rent,  and 
the  latter  replied  that  no  rent  was  due ;  that  he  had  not  made  a  lease ; 
that  there  was  nothing  due  and  he  would  not  pay ;  that  he  had  given  up 
the  store  and  plaintiff  could  do  what  he  liked  withit.  Thereupon  the 
plaintiff  started  for  home.  The  president  and  secretary  of  the  defend- 
ant went  to  the  railway  station  and  there  had  a  conversation  with_the 
plaintiff  about  compromising  the  matter  bv  taking  the  cellar  of  said 
premises  for  fifty  dollars  a  month  for  the  term  of  the  lease  if  the 
plaintiff  would  cancel  the  same  as  to  the  rest  of  the  premises.  The 
plaintiff'  said' he  would  think  over  the  matter  and  see  what  he  could' 
do  with  the  remainder  of  the  property,  and  let  them  know.  The  plain- 
tiff' testifies  that  thereafter,  and  on  the  27th  of  November,  1893,  he 
wrote  to  the  defendant  as  follows : 
"Kaufman  Dairy  &  Ice  Cream  Co. : 

"Gentlemen :  I  have  an  offer  for  the  store  you  leased  from  me,  787 
Eighth  Ave.  the  parties  will  pay  $1,500  to  the  first  of  May  and  $1,600 
for  three  years  from  May.  I  think  this  is  about  as  good  an  offer  as 
can  be  expected,  considering  the  times.  Please  let  me  know  if  you  will 
keep  the  cellar  and  pav  the  dift'erence  between  the  $1.jOO  and  $2.400 
to^jSIay,  and  $1,600 — ^2,400  after.  An  early  reply  will  much  oblige. 
"Yours  respect.,  J.  Gray,  323  Washington  Avenue." 

The  plaintiff  further  testifies  that  he  inclosed  this  letter  in  an  en- 
velope directed  to  the  defendant  at  Kingston,  N.  Y.,  deposited  it  pre- 
paid in  the  post  office  at  Brooklyn  and  received  no  reply  thereto.  Tlie 
defendant  had  tenants  in  the  cellar  when  it  left  the  premises.  These 
tenants  attorned  to  the  plaintiff. 

On  or  about  the  1st  of  December,  1S93,  plaintiff  let  the  premises 
which  had  been  previously  demised  to  the  defendant  to  one  Mary  Ann 
Keogh  for  the  term  of  three  years  and  five  months  at  an  annual  rent 
ot  ^l,:)UO  per  year  tor  ihe  tirst  hve  months,  and  $1,600  per  ^^r  for  the 
remamnig  three  years,  to  be  paid  in  equal  monthly  installments  in  ad- 
vance. 

The  defendant  pleaded  eviction,  but  gave  no  evidence  upon  that  sub- 
ject, and  upon  the  trial  admitted  that  it  had  no  excuse  for  leaving  the 


Ch.  1)  MODE  OF   CONVEYANCE  21o 

premises.  Kaufman  admitted  having  a  conversation  with  the  plaintiff 
before  the  defendant  left  the  premises,  in  which  the  plaintiff  stated  that 
he  would  hold  the  defendant  for  the  rent,  but  denied  that  he,  Kaufman, 
had  stated  that  the  defendant  would  not  stay  where  it  did  not  make 
any  money.  Kaufman  also  admitted  the  receipt  of  the  letter  dated  No- 
vember 3d,  but  both  he  and  Spore  denied  receiving  the  one  dated  No- 
vember 27th.  Both  admitted  the  conversation  testified  to  by  the  plain- 
tiff as  having  taken  place  at  Kingston,  and  Spore  testified  that  on  that 
occasion  Kaufman  stated  distinctly  that  the  defendant  did  not  owe  any 
rent ;  that  it  had  given  up  and  surrendered  the  premises ;  that  there  was 
some  talk  at  the  railroad  station  about  renting  the  cellar  from  tlie 
plaintiff  at  fifty  dollars  per  month  during  the  term  of  the  lease,  but 
there  was  nothing  said  in  that  conversation  about  plaintiff's  reletting 
the  premises  on  defendant's  account.  Abraham  L.  Gray,  a  son  of  the 
plaintiff,  testified  on  the  latter's  behalf  that  he  went  to  Kingston  with 
his  father  to  see  Kaufman  and  was  present  at  the  conversation  at  the 
railroad  station.  He  testified  that  Mr.  Spore  offered  the  plaintiff  fifty 
dollars  a  month  for  the  basement  if  he  would  let  the  defendant  off  on 
the  store,  and  the  plaintiff  replied  that  he  would  think  it  over  and  let 
them  know.  The  lease  to  the  defendant  contained  no  provision  against 
subletting,  except  for  "any  saloon  or  liounr  busmess.  and_con- 
tained  no  provision  for  a  reletting  of  the  premises  by  the  plaintiff 
in  case  the  defendant  vacated  tlie  same  during  the  term  of  the  lease. 

After  the  evidence  was  all  in,  tbe  parties  waived  the  jury  and  sub- 
mitted the  facts  to  the  court  for  decision.    The  defendant  admitted  its 
liability  for  the  November  rent,  but  claimed  that  it  was  released  as  to 
the  December  rent  by  the  reletting  of  the  premises  to  said  Mary  Ann 
Keogh  on  the  1st  of  December.    Upon  these  facts  the  court  found^iat 
the  plaintiff"  was  entitled  to  recover  rent  for  the  mont 
and  December,  less  the  amount  received  from  the 
the  plaintiff  refused  to  accept  a  surrender  of  the 
premises  were  at  no  time  surrendered  to  the  plaintiff,  and  that  the  re- 
letting of  the  premises  was  done  with  the  assent  of  the  defendant. 

Werner,  J.  This  controversy  arises  out  of  the  conventional  rela- 
tion  of  landlord  and  tenant  under  circumstances  governed  by  fixed 
principles  of  law.  The  first  and  most  important  question  in  the  case  is 
whether  the  plaintiff^s  reletting  of  the  premises  deicribed  in  the  lease,  f 

a?terthe  defendant's  attempted  surrender  of  the  same,  changed  or  af-  ' 

iecfed  the  legal  status  of  the  parties  under  the  originaljease.     It  is  so 
well  settled  as  to  be  almost  axiomatic  that  a  surrender  of  premises  is 
created  by  operation  of  law  when  the  parties  to  a  lease  do  some  act  so  i^.x  ^^    ^^ 
inconsistentwith  the  subsisting  relation  of  landlord  and  tenant  as  to  ^ 

imply  that  they  have  both  agreed  to  consider  the  surrender  as  made,  y^'^^/v'-*'***^ 
It  has  been  held  in  this  state  that  "a  surrender  is  implied,  and  so  effected 
by  operation  of  law  within  the  statute,  when  another  estate  is  created 
by  the  reversioner  or  remainderman  with  the  assent  of  the  termor  in- 
compatible with  the  existmg  state  or  term."    Coe  v.  Hobby,  72  N.  Y. 


he  court  lound^iat 

jnths  of  Noveinljer  /f)^^   ^f^Ztt 

iinderfennnts;  thnt  Un^  ^ 
premises  :  that  the  ' 


214  DERIVATIVE  TITLES  (Part  2 

145,  28  Am.  Rep.  120.  The  existence  of  this  rule  has  been  recognized 
in  this  state  in  Bedford  v.  Terhune,  30  N.  Y.  453,  86  Am.  Dec.  394; 
Smith.  V.  Kerr,  108  N.  Y.  36,  15  N.  E.  70,  2  Am.  St.  Rep.  362;  Under- 
hill  v.^ColHns,  132  N.  Y.  271,  30  N.  E.  576,  and  in  other  jurisdictions 
in  Beall  v.  White,  94  U.  S.  389,  24  L.  Ed.  173 ;  Amory  v.  Kannoffsky, 
117  Mass.  351,  19  Am.  Rep.  416;  Thomas  v.  Cook,  2  Barn.  &  Aid.  119; 
Nickells  v.  Atherstone,  10  Ad.  &  El.  N.  R.  944;  Lyon  v.  Reed,  13  M. 
&  VV.  306,  and  Washburn  on  Real  Property,  vol.  1,  pp.  477,  478.  It  is 
conceded  that  defendant's  offer  of  surrender  was  declined  by  the  plain- 
tiff, and  that  after  the  defendant's  abandonment  of  the  premises  the 
plaintiff  relet  the  same  in  his  own  name  to  one  Mary  Ann  Keogh  for  a 
term  of  three  years  and  five  months.  Such  a  situation,  unqualified  by: 
other  conditions,  would  create  a  surrender  by  operation  nf  law.  We 
niust,  therefore,  ascertain  whether  the  conduct  of  the  parties  takes  this 
case  outof  the  operation  of  this  rule. 

it  is  urged  by  the  learned  counsel  for  the  plaintiff  that  the  reletting 
was  done  with  the  consent  of  the  defendant  under  circumstances  which 
bring  the  case  directly  within  the  rule  laid  down  by  Judge  Haight  in 
Underbill  v.  Collins,  132  N.  Y.  270,  30  N.  E.  576.  In  that  case  the 
landlord  and  tenant  had  a  conversation  a  few  days  before  the  latter  va- 
cated the  premises.  The  tenant  asked  the  landlord  to  take  the  same 
off  his  hands.  This  the  landlord  declined  to  do,  insisting  that  he  would 
hold  the  tenant  for  the  rent  and  would  lease  the  premises  for  his  bene- 
fit. In  the  case  at  bar  there  was  also  a  conversation  before  the  prem- 
ises were  vacated ;  but  in  this  conversation  there  was  nothing  said 
about  a  reletting.  The  plaintiff"  simply  said  that  he  would  hold  the  de- 
fendant for  the  rent.  On  the  2d  of  November,  1893,  a  day  or  two  after 
defendant's  removal,  the  plaintiff  received  the  keys  of  the  premises.. 
He  returned  them  with  a  note  stating  that  he  would  relet  on  defend- 
ant's account  and  hold  it  responsible  for  any  loss  that  may  be  sus- 
tained. To  this  note  the  defendant  made  no  reply.  On  the  17th  of 
November,  1893,  the  plaintiff  and  his  son  went  to  Kingston  and  saw 
Kaufman  and  Spore.  In  the  conversation  which  took  place  between 
them  and  the  plaintiff  there  was  no  suggestion  of  reletting.  The  plain- 
tiff" made  a  demand  for  tlie  rent  which  was  unpaid,  and  the  defendant 
made  an  offer  of  compromise,  under  which  it  agreed  to  take  the  cellar 
of  said  premises  at  fifty  dollars  per  month  if  the  plaintiff  would  cancel 
the  lease  as  to  the  store.  This  offer  the  plaintiff  agreed  to  consider. 
On  the  27th  of  November,  1893,  the  plaintiff  wrote  to  the  defendant 
that  he  had  an  oft"er  for  the  store  of  $1,500  per  year  to  the  first  of  the 
next  ensuing  May,  and  $1,600  per  year  for  three  years  thereafter.  He 
requested  the  defendant  to  let  him  know  if  it  would  keep  the  cellar  and 
pay  the  difference  between  the  rent  fixed  by  the  lease  and  the  amount 
offered  by  the  intending  tenant.  To  this  letter  tlie  defendant  made  no 
reply. 

It  will  be  observed  from  this  brief  resume  of  the  facts  that  there  are 
several  distinct  features  in  which  this  case  differs  from  the  Underbill 


Ch.  1)  MODE  OF   CONVEYAXCB  215 

Case.  In  the  latter  case  there  was  a  personal  interview  before  the 
tenant  had  vacated,  in  which  the  subject  of  reletting  the  premises  was 
discussed.  Here  the  subject  of  reletting  Avas  not  mentioned  until  after 
the  tenant  went  out,  and  then  the  suggestion  came  in  a  letter  to  which 
the  defendant  made  no  reply.  Obviously  the  only  theory  upon  which 
the  defendant  can  be  held  to  have  assented  to  the  reletting  of  the  prem- 
ises is  that  by  its  silence  it  acquiesced  in  the  act  of  the  plaintiff.  We 
may  assume,  although  we  do  not  decide,  that  if  the  communications 
upon  the  subject  of  reletting  had  been  made  verbally  in  the  course  of 
conversation  between  the  parties,  even  after  the  tenant  had  vacated  the 
premises,  the  rule  as  to  agreements  by  implication  laid  down  in  the  Un- 
derbill Case  might  be  held  to  apply.  But  here,  as  we  have  seen,  the 
landlord's  proposal  to  relet  was  in  the  form  of  two  letters.  In  the  first 
of  these,  dated  November  3d,  he  makes  the  unequivocal  assertion  that 
he  will  let  the  premises  on  defendant's  account,  and  will  hold  it  for  any 
loss  that  may  be  sustained.  Defendant's  failure  to  reply  to  this  letter  is 
followed  by  a  personal  interview  on  the  17th  of  November,  in  which 
there  is  no  reference  to  a  reletting  of  the  premises,  and  in  which  de- 
fendant's president,  after  denying  any  liability  for  rent,  tells  the  plain- 
tiff to  do  what  he  likes  with  the  premises.  Then  follows  the  letter  of 
November  27th,  informing  the  defendant  of  the  offer  which  the  plain- 
tiff had  received  from  an  intending  tenant,  and  asking  defendant  if  it 
would  pay  the  difference  between  the  amount  offered  and  the  rent  re- 
served in  the  original  lease. 

It  will  be  observed  that,  even  if  we  were  to  give  these  written  com- 
munications the  same  force  and  effect  as  verbal  statements  made  in  per- 
sonal interviews  between^the  parties,  the  facts  here  are  easily  differ- 
entiated from  those  in  the  Underbill  Case  J  There  the  tenant  vacated  the 
premises  upon  the  oft'er  of  the  landlord  to  relet  for  his  benefit  nnd  nn- 
der  such  circumstances  as  tn  permit  the  inference  that  he  accepted  the 
offer.  Here  the  landlord's  statement  to  that  effect,  made  after  the  ten- 
ant's abandonment  of  the  premises,  is  followed  by  negotiations  in  which 
the  tenant  expresses  a  willingness  to  keep  the  cellar  at  fifty  dollars 
per  month  if  the  landlord  will  cancel  the  lease  as  to  the  rest  of  the 
premises.  These  steps  are  succeeded  by  a  communication  from  the 
landlord,  in  which  he  requests  the  tenant  to  decide  whether  it  will  keep 
the  cellar  and  pay  the  deficit  which  will  arise  by  an  acceptance  of  the 
offer  which  the  former  then  had  under  consideration.  It  may  well  be 
doubted  whether  verbal  declarations  made  in  personal  jntprvipw;  hp- 
tween  the  parties,  under  the  circumstance*'  nhnvp  na^rfitfr],  wnu  1  d 
support  the  plaintiff's  theorv  of  this  action.  To  create  a  contract  by 
impii^ation^.lh^rernust  bean  unequivocal  and  unqiiiTlfie^asser|lQ^_of 
a  ri^liOy\one  qf^jhe  parties.  aaSTiuch  silence  bjY__the-Qther_^as^  to-sup- 
poji^theJ^^alJjiipi^ilcejoijTi^^ 

But  it  is  clear,  both  upon  principle  and  authority^  that  we  have  no 
right  to  indulge  in  the  assumption  that  the  letters  above  referred  to 
have  the  force  and  effect  of  verbal  statements  made  in  the  presence  of 


216  DERIVATIVE  TITLES  (Part  2 

the  defendant's  officers.  The  rule  is  precisely  to  the  contrary.  It  is 
well  expressed  in  Learned  v.  Tillotson,  97  N.  Y.  12,  49  Am.  Rep.  508, 
as  follows :  "We  think  that  a  distinction  exists  between  the  effect  to 
be  given  to  oral  declarations  made  by  one  party  to  another,  which  are 
in  answer  to  or  contradictory  of  some  statement  made  by  the  other 
party,  and  a  written  statement  in  a  letter  written  by  such  party  to  an- 
otlier.  It  may  well  be  that  under  most  circumstances  what  is  said  to  a 
man  to  his  face,  which  conveys  the  idea  of  an  obligation  upon  his  part 
to  the  person  addressing  him,  or  on  whose  behalf  the  statement  is 
made,  he  is  at  least  in  some  measure  called  upon  to  contradict  or  ex- 
plain ;  but  a  failure  to  answer  a  letter  is  entirely  different.^nd  ther^Js 
no  rule  of  law  which  requires  a  person  to  enter  into  a  correspondence 
with  another  in  referencetoa  matter  m  dispilte  between  them,  or  which 
holds  that  silence  should  be  regarded  as  an  admission  against  the  party 
to  whom  the  letter  is  addressed.  Such  a  rule  would  enable  one  party 
to  obtain  an  advantage  over  another  and  has  no  sanction  in  the  law." 
To  the  same  effect  are  Bank  of  B.  N.  A.  v.  Delafield,  126  N.  Y.  418, 
27  N.  E.  797,  and  Thomas  v.  Gage,  141  N.  Y.  506,  36  N.  E.  385. 

It  is  manifest^herefore,  that  the  act  of  the  plaintiff  in  reletting_said 
premises  under  the  circumstances  referred  to  operated  as  an"  acceptance 
of  the  defendant's  oft'er  to  surrender.  The  judgment  herein  can  be  sup- 
ported upon  no  theory  that  is  consistent  with  the  established  rules  of 
law.  As  the  views  above  expressed  are  decisive  of  the  case,  it  is  un- 
necessary to  discuss  the  other  questions  raised  by  the  defendant. 

The  judgment  of  the  court  below  sliould  be  reversed  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 

Landon,  J.  (dissenting).  The  trial  court  found  that  "Plaintiff 
refused  to  accept  a  surrender  of  the  premises,  and  did  not  accept  it, 
and  the  premises  were  at  no  time  surrendered  to  the  plaintiff".  The 
letting  of  the  premises  was  done  with  the  assent  of  the  defendant." 
The  order  of  affirmance  by  the  Appellate  Division  does  not  state  that 
it  was  unanimous,  but  tliat  is  not  important  here,  for  the  record  con- 
tains evidence  tending  to  support  the  findings.  The  evidence  tends  to 
show  that  the  defendant  intended  by  its  conduct  to  threaten  the  plain- 
tiff with  the  loss  of  his  rent,  and  thus  to  coerce  him  to  relet  the^prein- 
ises,  and  then  deny  its  assent^ jiotwithstanding  after  its  receipt  of  the 
plaintiff's  first  letter,  it  told  the  plaintiff  he  could  do  as  he  liked  with 
the  premises.  The  defendant  thus  replied  to  the  plaintiff''s  letter,  at 
least  so  the  trial  court,  in  view  of  all  the  circumstances,  might  find,  and 
did  find. 

Parker,  Ch.  J.,  and  Gray,  O'Brien  and  Haight,  JJ.,  concur  with 
Werner,  J.,  for  reversal.  Landon,  J.,  reads  dissenting  memorandum. 
CuLLEN,  J.,  not  sitting. 

Judgment  reversed,  etc.**  -JLs^-l 

2»  See  Welcome  v.  Hess,  90  Cal.  507,  27  Pac.  oG9,  25  Am.  St.  Rep.  145 
(1891) ;   Pelton  v.  Place,  71  Vt.  4J|J^4y  Atl.  63  (1899). 


(\0 


eJ-^'^ 


Ch.  1)  MODE  OF  CONVEYANCB  217 

■'  -^  OLDEWURTEL  v.  WIESENFELD. 

(Court  of  Appeals  of  Maryland,  1903.     97  Md.  165,  54  Atl.  969.) 

Briscoe,  J.'°  On  the  eighth  day  of  June,  1900,  the  appellees  in- 
stituted a  suit  in  covenant  in  the  Superior  Court  of  Baltimore  City, 
against  the  appellant,  to  recover  rent  due  and  owing  iinrlpr  a  leasp  dafa4 
the  1st  day  of  April,  1895,  for  a  store  and  dwelling  known  as  No.  507 
South  BroaHway,  Baltimore.  The  lease  is  in  writing  and  is  fully  set 
out  in  the  record.  The  property  was  rented  for  the  term  of  five  years, 
beginning  on  the  first  day  of  April,  1895,  and  ending  on  the  31st  day 
of  March,  1900,  at  $900  per  year,  payable  in  equal  monthlv  installments 
on  the  firjt  day  of  each  and  every  month.  It  was  provided  by  the  terms 
of  the  lease  that  its  provisions  and  covenants  should  continue  in  force 
from  term  to  term  after  the  expiration  of  the  term  mentioned  therein, 
provided  the  parties  thereto  or  either  of  them  could  terminate  it  at  the 
end  of  the  term,  or  of  any  year  thereafter,  by  giving  at  least  ninety  days 
previous  notice  thereof  in  writing.  It  was  further  provided,  in  rase 
the  rent  should  be  ten  days  in  arrear  and  not  paid  when  the  same  should 
become  due,  then  the  lessor  may  re-enter  and  take  back  the  premises 
without  demand.  There  was  no  covenant  in  the  lease  for  making  re- 
pairs to  the  premises. 

The  declaration  states  that  the  sum  of  six  hundred  and  five  dollars 
was  due  and  unpaid  for  rent  with  interest  from  April  1st,  1900,  over 
and  above  all  discounts,  according  to  the  following  bill  of  particulars, 
which  was  filed,  on  demand,  in  the  case. 

Bill  of  Particulars. 

Mr.  Henry  Oldewurtel  to  Bernard  Wiesenfeld  and  Joseph  Miller, 
Trustees  of  the  Estate  of  Betsey  Wiesenfeld. 

To  5  years  rent  of  No.  507  S.  Broadway,  at  $900  per  year,  as  per 

lease  of  April  1st,  1895 $4,500  Ofl 

Less  $10  per  month,  waived  for  the  months  of  Aug.,  Sept.,  Oct.,  Nov. 

and  Dec,  1897,  and  Jan.,  1898,  respectively 60  00 

$4,440  00 
Credits. 

By  cash  from  April  1,  1895,  to  June  1.  1898 $2,865  00 

By  Hughes  &  Co.,  from  Sept.  1,  1S9S.  to  Jan.  1,  1899 280  00 

By  Wheeler  &  Hughes,  from  Feb.  1.  1899,  to  Aug.  1,  1899 370  00 

By  C.  Walmacher,  from  Oct.  19,  1899,  to  March  31,  1900 320  00 

$3,835  00 
To  balance   605  00 

The  undisputed  facts  of  the  case  out  of  which  the  controversy  arose 
briefly  stated  are  these:    The  defendant,  the  lessee,  continued  in  pos- 

3  0  The  portion  of  the  opinion  relating  to  the  correctness  of  the  form  of 
action  is  omitted. 


218  DERIVATIVE  TITLES  (Part  2 

session  of  the  demised  premises  until  Tune  1st,  1898.  when  he  paicLthe 
rent  to  that  date  and  left  the  key  at  the  office  of  tlie  plaintiff  in  his  ab- 
sence^  stating  to  the  clerk  "that  he  had  moved  out  the  house  and  here 
was  the  key." 

On  June  2d,  the  next  day,  the  plaintiff  wrote  him  the  following  let- 
ter: 
"Henry  Oldewurtel,  Esq., 

"Dear  Sir :  I  have  been  informed  that  you  left  the  key  of  No.  507 
South  Broadway  at  my  office.  I  beg  to  notify  you  that  I  refuse  to  ac- 
cept the  key  and  that  it  is  still  at  my  office  at  your  risk  and'disposal. 
I  also  hereby  notify  you  that  we  will  hold  you  subject  to  all  the  cove- 
nants  of  the  lease,  executed  by  you. 

'Wery  truly  yours,  '  Bernard  Wiesenfeld." 

The  plaintiff  not  receiving  a  reply  to  the  foregoing  letter,  a  second 
letter  dated  June  3,  1898,  was  written  the  defendant  as  follows: 
"Henry  Oldewurtel,  Esq., 

"Dear  Sir:  I  herein  beg  to  notify  you  that  I  intend  to  make  an  ef- 
fort  to  get  a  tenant  for  the  premises  known  as  NoTbO/  South  Broad- 
way,  without  abandoning  anv  rights.  Mr.  Miller  and  myself  as  execu- 
tors  and  trustees  may  have  against  you  as  tenant  under  our  lease  to 
you  for  rent.  In  case  we  get  a  tenant  we  will  allow  you  credit  for 
such  rent  as  we  may  collect,  and  hold  you  for  the  balance  as  due  under 
your  lease. 

"Yours  truly,  Bernard  Wiesenfeld." 

S ub ^equently  a  sign  was  put  in  the  window  of  the  premises  that  the 
property  was  for  rent,. and  it  was  rented  from  time  to  time,  and  the 
defendant  credited  with  the  rent  to  the  date  of  the  expiration  of  th e 
lease.  The  plaintiff's  testified  that  they  refused  to  accept  a  surrender 
of  the  premises,  never  made  any  alteration  of  the  original  lease,  by  a 
subsequent  agreement,  and  never  ousted  the  defendant  from  the  prem- 
ises, and  that  necessary  repairs  were  made  to  the  property.  The  de- 
fendant, on  the  other  hand,  testified  that  he  vacated  the  property  be- 
cause it  had  been  condemned  by  the  building  inspector  of  BaltimoFe^ 
and  was  not  tenantable,  and  he  notified  the  clerk  when  he  paid  the  rent 
that  he  would  no  longer  be  liable  under  the  lease.  There  was  other 
evidence  in  the  case,  but  as  the  material  facts  are  not  disputed  and 
have  been  heretofore  stated  it  will  not  be  necessary  to  further  set 
them  out.  At  the  trial  below,  the  Court  granted  the  two  pravers  offer- 
ed on  the  part  of  the, plaintiff,  and  rejected  those  presented  by  the  de- 
fendant, except,  tbe-^fifih.  It  also  granted  the  plaintift''s  special  ex- 
ception to  the  defendant's  first  prayer,  that  there  was  no  legally  suffi- 
cient evidence  to  show  that  the  terms  of  the  lease  were  ever  modified 
by  any  legally  binding  agreement.  The  whole  case  was  presented  on 
the  prayers  and  the  special  exception,  and  we  shall  proceed  to  consider 
them. 

The^  pravers  on.  the  part  of  the  plaintiff  were  demurrers  to  the  evi- 
dence and  were  to  the  efiFect  that  as  a  matter  of  law  there  was  no  legg.1- 


Ch.  1)  MODE  OF  CONVEYANCE  219 

1^  sufficient  evidence  of  the  acceptance  of  a  surrender,  or  of  an  ouster 
by  the  plaintiff. 

The  generaFrule  is  well  settled  that  to  constitute  a  valid  surrender 
of  rented  premises  by  a  tenant  during  the  term  there  must  be  the 
assent  of  both  parties  to  the  rescinding  of  the  contract  of  renting,  and 
such  assent  may  be  expressed  or  implied  froip  such  acts  as  would  rea- 
sonably indicate  that  the  parties  have  agreed  that  the  tenant  shall 
abandon  the  premises,  and  the  landlord  assume  its  possession.  Biggs 
V.  Stueler,  93  Md.  110,  48  Atl.  727. 

The  appellants  admit  that  the  defendant  returned  the  key  before 
the  expiration  of  the  lease.  It  was  not  accepted  and  therefore  up  to 
this  time  no  surrender  took  place.  It  is  further  conceded  that  the 
plaintiffs  had  a  right  to  enter  for  the  purpose  of  taking  care  of  the 
property,  of  repairing  the  premises  and  to  put  a  "for  rent  sign"  in  the 
window. 

Butit  is  earnestly  urged  that  the  re-renting  of  the  property  fpr  the. 
bgnent  of  the  tenant  without  his  assent  was  an  acceptance  of  a  sur- 
tSJid^r,  an  nn^tfr  nf  the  tpnant^  and  released  him  from  liability  for  rent 
under  the  lease^  , 

There  are  some  authorities  to  the  effect  that  a  re-entry  and  reletting 
of  abandoned  premises  by  the  landlord  without  the  consent  of  the  ten- 
ant, would  create  a  surrender,  by  operation  of  law.  Underbill  v.  Col- 
lins, 132  N.  Y.  271,  30  N.  E.  576;  Gray  v.  Kaufman,  162  N.  Y.  388, 
56  N.  E.  903,  49  L.  R.  A.  580,  76  Am.  St.  Rep.  327 ;  Day  v.  Watson,  8 
Mich.  535 ;  Rice  v.  Dudley,  65  Ala.  68. 

The  best  approved  cases,  however,  assert  the  contrary  doctrine,  and 
hold  that  where  a  tenant  repudiates  the  lease,  and  abandons  the  de- 
mjsed  premises,  and  the  lessor  enters  and  relets  the  property,  that  such 
re-renting  does  not  relieve  the  tenant  from  the  payment  of  the  rent 
under  the  covenants  of  the  lease.  Auer  v.  Penn.  99  Pa.  370,  44  Am. 
Rep.  114;  Meyer  v.  Smith,  ZZ  Ark.  627;  Bloomer  v.  Merrill,  1  Daly 
(N.  Y.)  485;  Scott  v.  Beecher,  91  Mich.  590,  52  N.  W.  20;  Rich  v. 
Doyenn,  85  Hun,  510,  ZZ  N.  Y.  Supp.  341 ;  Alsup  v.  Banks,  68  Miss. 
664,  9  South.  895,  13  L.  R.  A.  598,  24  Am.  St.  Rep.  294. 

In  Biggs  V.  Stueler,  93  Md.  Ill,  48  Atl.  729,  this  Court  said:  "The 
acts  upon  which  the  appellee  in  this  case  relies  to  prove  a  surrender  are 
the  acceptance  of  the  keys  by  the  appellee,  the  repairs  to  the  house  and 
the  reletting.  But  those  are  insufficient  of  themselves  to  show  accept- 
ance, unless  under  all  the  circumstanrp<;  thfV  ^''^  "f  such  a  Hi^imrter 
a^  to  show  a  purpose  on  the  part  of  the  tenant  to  vacate  and  on  the 
part  ot  the  landlord  to  resume  possession,  to  the  exclusion  of  tbp.  ten- 
ant." 

In  the  case  now  under  consideration  all  of  the  acts  of  the  lessor, 
including  the  letters  of  June  2nd  and  3rd  clearly  show  that  the  appel- 
lees did  not  intend  to  accept  a  surrender  of  the  property  and  to  release 
the  tenant  from  his  liability  for  rent.  On  the  contrary  the  letters  dis- 
tinctly state  the  property  would  be  rented  subject  to  the  covenants  of 


220  DERIVATIVE  TITLES  (Part  2 

the  lease  and  if  a  tenant  could  be  secured,  and  rent  collected,  the  lessee 
would  be  credited  therewith,  and  be  liable  for  the  difference. 

The  case  of  Big-gs  v.  Stueler,  supra,  is  also  relied  upon  by  the  appel- 
lant to  sustain  the  proposition  urged  by  him,  that  the  assent  of  the 
tenant  is  absolutelv  necessary  -hefore  the  landlord  ran  r^l^^t  rlpmi'cpri 
premises.  In  that  case  there  was  a  statement  that  would  seem  to  sus- 
tain the  appellant's  contention  but  an  examination  of  the  whole  case, 
will  clearly  show  that  the  case  cannot  be  given  such  a  construction. 
It  was  not  necessary  for  the  decision  of  the  case,  and  would  not  be  in 
accord  with  the  conclusion  reached  by  the  Court,  under  the  facts  of  the 
case. 

As  to  the  rulings  of  the  Court  on  the  first  and  second  exceptions 
upon  the  admissibility  of  evidence  but  little  need  be  said  as  the  evi- 
dence was  afterwards  admitted,  and  the  defendant  was  not  injured 
thereby. 

The  plaintiff's  special  exception  to  the  defendant's  first  praver  w^as 
properlv  sustamed.  There  was  no  evidence  legally  sufficient  to  show 
that  the  terms  of  the  lease  had  been  modified  by  an  oral  agreement, 
and  what  was  said  by  us  on  the  demurrer  to  the  declaration,  disposes 
of  this  question. 

Forthe  reason  we  have  given,  the  defendant's  prayers  were  properly 
rejected,  and  as  the  correctness  of  the  Court's  rulings  on  the  plamtiff's 
prayers  established  the  right  of  the  plaintifls  to  recover,  the  judgment 
will  be  affirmed. 

Judgment  affirmed  with  costs.'*  '  '  ■ 

31  "Upon  the  trial  in  the  court  below  the  learned  .Indgje  Instructed  the  jury, 
as  set  forth  in  the  second  assigrnment  of  error,  as  follows:  '1^  a  man  refuses 
to  continue  your  tenant,  gives  up  the  house  into  your  hands,  why,  then,  sou 
have  a  right  to  put  a  bill  uimhi  the  hinisp  nnil  try  to  rent  it;  because,  if  you 
rent  it,  it:  is  so  much  saved  to  Mr.  Auer,  no  much  saved  to  the  surety  of 
the  tenant,  because  you  have  to  give  an  account  of  every  cent  you  make  out 
of  the  house;  and  certahilv  it  is  much  better  for  the  tenant,  that  the  land- 
Igrd  should  rent  the  house  aivl  get  sonietliinLT  fnr  TI,  tli;in  to  siuiiily  FockjUie 
door  and  lay  by  and  sue  tlie  tenant  or  surety  fer  the  whole  ainnnnt  of , the 
rent  tor  the  whole  terni  for  whlcF  he  lias  taken  it ;  so  that,  being  for  the 
benefit  of  both  parties,  it  is  no  presumption  that  the  landlord  has  accepted  a 
surrender,  that  he  has  taken  and  leased  the  house.'  We  see  no  error  in  this. 
It'is  good  sense  as  well  as  good  law."  Auer  v.  Pennsylvania,  90  Pa.  .370,  .'576, 
44  Am.  Rep.  114  (1882),  per  Paxson,  J.  In  the  case,  however,  it  appeared  that 
the  landlord  had  notified  the  surety  of  the  tenant  who  moved  out  that  he 
would  be  looked  to  as  continued  security  for  the  rent. 

"May  a  landlord,  after  his  tenant  has  vncnterl   arwj   ^han c\qh(h[  the   prem- 


ises without  cause,  resume  possession  fEere6f,  and  re-lease  the  same  to  an- 
other, after  giving  notice  to  the  original  tenant  of  his  intention  of  holding 
him  for  the  rents  reserved,  and  that  he  had  resumed  possession  for  the  pnr- 
pose  of  protecting  the  reversion,  and  had  relet  them  to  reduce  the  damages 
which  he  might  otherwise  sustain,  without  being  held  to  have  crpnfptiM 
surrenaer  by  operation  of  law.  *  *  *  The  arpnprnl  mlp  no  doubt  Is  thnf. 
if  the  tenant  abandons  the  premises  and  the  L4hdlord  I'e-fen'ts  them  ^a~suF 
render  is  estabUsliedT^  Stobie  v.  Dills,  (JL!  111.  4oi>  (l^TI). — J:5ut  nearly  every 
rule  nas  its  excpptlons,  and  one  of  the  excentioi^s  to  the  rule  l.ust  quoted  is 
that  if  the  landlord  re-leases  them  for  and'bri  Account  of  the  tenant  n  snf- 
renaer  is  not  to  be  interred.  *—- * — *  If  tney  gave  appellees  notice  that 
they  intended  to  hold  them  for  the  rent,  and  re-rented  simply  to  reduce  the- 


Ch.l) 


MODE   OF  CONVEYANCa 


221 


LYON  V.  REED. 

(Court  of  Exchequer,  1844.     13  Mees.  &  W.  285.) 

Parke,  B.^^  This  was  a  special  case  argued  in  Easter  Term.  It 
was  an  action  of  debt  by  the  plaintiff,  as  assignee  of  the  reversion  of 
certain  houses"an3  rope-walks  at  i5hadwell,"lio_lderrun(ier  a  lease  trom 
the  Dean  ofS't.  Paul's  against  the  defendants,  who  are  executors  of 
Shakespeare  Reed,  Deceased,  ihe  plaintitt  claims  from  the  defend- 
ants  nmeteen  years'  rent,  accrued  due  between  Christmas,  1820,  and 
Christmas,  1839,  partly  in  the  life  time  of  Shakespeare  Reed,  who  held 
the  premises  during  his  life^and  partly  since  his  decease,  while  the 
premises  were  in  the  possession  of  the  defendants,  his  executors. 

The  material  facts  are  as  follows : — The  premises  in  question  are 
parcel  of  the  possession  of  the  Dean  of  St.  Paul's,  and  it  appears  that, 
on  tlie  26th  of  December.  1803,  the  then  dean  demised  a  large  estate  at 
§hadweli^jjid^ing  the  houses  and  premises  in  question,  to  two  per- 
sons of  the  names  of  Ord  andPlanta  (who  were  in  fact  Jrustees  for 
tlieI3^jtY£sJamily)  for  a  term  of  forty  years,  commencing  at  Christmas, 
1803,  and  which  would,  therefore,  expire  at  Christmas,  1843.  On  the 
24th jjf  March,  1808,  Ord  and  Planta  made  an  underlease  of  the  houses 
and  rope-walks  in  question  to~StTakespeare  Reed  for  thirty-four  years, 
cx)mmencinfT  from  Christmas,  180/,  so  that  the  term  created  bv  th\is 
underlease  would  expire  at  Christmas.  1841.  leaving  a  reversion  of  two 
years  in  Ord  and  Planta.    The  rejjl  sought  to  hox^zo^^^^i^dj^J^^ej:^^ 

du^-^pniheuijjierlea^e;^^ 
Cl^i§ti^asJJ^39^^   It  appears  that,  previously  to  the  month  of  October, 
1811,  Robert  Hartshorn  Barber  and  Francis  Charles  Parry  were  .ap- 
pointed by  the  Court  of  Chancery  trustees  for 

the  place  ot  Urd  and  Planta ;    and  by  an  indenture  dated  the  3d  of 
October,  fell,  endorsed- on  the  lease  of  1803,  all  the  property  at  Shad 


/  ^  A'iA^'-'^  /I 


the  Bowes  family,  in  /-iXit/CCu^ 


9r^ 


well  Remised  by  that  lease  was  assigned  by  Ord  and  Planta  to  Barber 
and  Parry,  the  new  trustees.     Soon  after  this  assignment,  the  Bowes 
family  appears  to  have  negotiated  with  the  dean  for  a  renewal  of  the     ^      <  Jix4y>*- ^ 
lease  of  1803,  and  accordingly  a  new  lease  was  executed  by  the  dean,      '  y^       -j 
^ ^ "^^SLO^     ^^f^ 


damages — and  this  is  made  to  appear  by  satisfactory  evidence — there  is  no 
reason  for  holding  that  there  was  a  surrender,  and  that  the  original  tenants 
were  released  from  their  obligation."  Brown  v.  Cairns,  107  Iowa,  727,  737, 
77  N.  W.  478,  482  (1S9S),  per  Deemer,  C.  J.  See  Kean  v.  Rogers,  146  Iowa, 
559,  123  N.  W.  754  (1909). 

"What  does  or  does  not  constitute  a  surrender  of  the  lease  and_  ^^^  Qf»pppt- 
ance  tlTereor  must  be  determined  trom  all  the  facts  itL-£a.Ch  particular  case. 
■vVtrhout"  stfitlhg  in  detail  all  the  testimony  on  that  point  m  this  case,  we 
think  it  is  a  fair  deduction  from  the  testimony  that  therp  y^«^-  g"pb  a  sux- 
render  here,  ana  an  acceptance  of  it.  especially  in  view  of  the  fnrt  ttiP^  ^" 


/^ 


Appellant  nevefjnotiged  the  lessee  at  any  time,  not  pvpti  pftpr  r^rmy^p;?  tvia 
nouncation  ilfpgpember.  1905.  that  they  would  not  renew  the  lease,  that  he 


expected  to"h(Ma  the  lessee  tOr  tll'5  rent."     Stein  v.  Hyman-Lewis  Co.,  95  Miss. 
293,  299,  48  South.  225,  226  (1909),  per  Whitlield,  C.  J. 

3  2  The  opinion  only  is  printed;   the  case  suthciently  appears  therefrom 


^>^;5*^ 


222  DERIVATIVE  TITLES  (Part  2 

\^\      dated  on  the  7th  of  April,  1812,  for  a  term  of  forty  years,  frnm  r;.|iri<;t- 
k  M  mas,  1811.  an3~which  term,  would  therefore,  endure  till  Chrktma';^ 

1~851.  "On fortunately  this  lease,  instead  of  being  made  to  Barber  and 
Parry  (the  new  trustees)  in  whom  the  old  term  (subject  to  the  under- 
lease to  Reed)  was  vested,  was  made  tq  Ord  and  Planta,  the  old  trus- 
tees; the  fact  of_the_change  of  trustees  and  the  assignment  of  the  3d 
of  October,  1811,  having,  at  the  time  escaped  observation.  In  this 
state  of  things,  a  private  act  of  Parliarnent  was  passedTenabling  the 
dean  and  his  successor  for  the  time  being  to  grant  leases  of  the  Shad- 
well  estate  to  the  trustees  of  the  Bowes  family  for  successive  terms  of 
ninety-nine  years,  renewable  for  ever. 

The  act,  which  is  intituled  "An  Act  to  enable  the  dean  of  St.  Paul's, 
London,  to  grant  a  Lease  of  Messuages,  Tenements,  Land's,  and  Here- 
ditaments in  the  parish  of  St.  Paul's,  Shadwell,  in  the  County  of  Mid- 
dlesex, and  to  enable  the  Lessees  to  grant  Subleases  for  building  on 
and  repairing,  that  Estate,"  received  the  royal  assent  on  the  22d  of 
July,  1812.  It  begins  by  reciting  the  will  of  Mary  Bowes,  whereby  she 
bequeathed  her  leasehold  estate  at  Shadwell,  held  under  the  Dean  of 
St.  Paul's,  (being  the  estate  afterwards  demised  by  the  leases  of  26th 
December,  1803,  and  the  7th  April,  1812,)  to  Ord  and  Planta,  on  cer- 
tain trusts  for  the  Bowes  family.  It  then  recites  the  lease  of  the  7th 
of  April,  1812,  and  after  stating  that  it  would  for  the  reasons  therein 
mentioned,  be  beneficial  for  all  parties  that  thedean  should  be  empow- 
ered to  grant  long  leases  of  the  Shadwell  property,  perpetually  renew- 
able, and  further  stating  that  Ord  and  Planta  were  desirous  of  being 
discharged  from  their  trust,  and  that  John  Osborn  and  John  Burt  had 
agreed  to  act  as  trustees  in  their  place ;  it  enacted,  that  it  should  be 
lawful  for  the  dean  and  his  successors  for  the  time  being,  and  he  and 
they  are  thereby  required,  on  a  surrender  of  the  existing  lease,  to 
demise  the  Shadwell  estate  to  Osborn  and  Burt,  their  executors,  ad- 
ministrators, and  assigns,  for  a  term  of  ninety-nine  years,  and  at  the 
end  of  every  fifty  years  to  grant  a  new  lease  on  payment  ot  a  nomfnal 
fine^  with  varTous  provisions  (not  necessary  to  be  stated)  torTecuring 
to  the  dean  and  his  successor  a  proportion  of  all  improved  rents  to  be 
thereafter  obtained.  And  by  the  second  section  of  the  act  it  is  en- 
acted, that,  immediately  on  the  execution  by  the  dean  of  the  first  lease 
for  ninety-nine  years  to  be  granted  in  pursuance  ot  the  act,  the  lease 
ot  the  /th  ot  April,  18iZ,  should  become  void.  It  is  plain,  from  the 
provisions  contained  in  this  act,  that  the  persons  by  whom  it  was  ob- 
tained were  not  aware,  or  had  forgotten  that,  in  the  month  of  October 
preceding,  Ord  and  Planta  had  assigned  their  interest  in  the  property 
to  Barber  and  Parry,  the  new  trustees  appointed  by  the  Court  of 
Chancery.    In  pursuance  of  the  act  of  Parliament  by  an  indenture  of 


three  parts,  dated  the  31st  day  of  August,  1812,  and_ma^gJ.^£lS£au-tFe 
^^  '  dean  of  the  first  part,  Thomas  iJowes"(the  party  "beneficially  interested 

*/        forJiisTrf"e)_qf  the'seTondl^art^ and  Osborn  and  Burt  of  the  third  part, 
' »  the  dean  demised  the  Shadwell  property  to  Osborn  and  Burt  for  a  term 


Ch.  1) 


MODE  OF   CONVEYANCE 


223 


of  nJnetvTnine  years,  and  the  dpt-^i,';^  ig  pypressed  fahe  maHf^  h<^  ;v^]1  in 
iconsideration  of  the  surrender  of  the  lease  of  die  7th  of  April,  181_2, 
"being  die  lease  last  existing,"  as  also  of  the  rents  and  covenants,  &c. 

Mr.  Bowes,  and  Osborn  and  Burt,  his  trustees,  appear  to  have  dis- 
covered, before  the  month  of  January,  1814,  the  mistake  into  which 
they  had  fallen,  and  two  further  deeds  were  then  executed  for  the 
purpose  of  curing  the  defect.  By  the  former  of  these  deeds,  which 
bears  date  the  6th  Januarv\  1814.  and  is  made  between  Barber  and 
Parry  of  the  one  part,  and  the  dean  of  the  other  part,  reciting  that,  at 
the  time  of  the  granting  of  the  lease  of  the  7th  of  April,  1812,  the 
estate  and  interest  created  by  the  original  demise  of  the  26th  of  De- 
cember, 1803,  was  vested  in  Barber  and  Parry,  and  also  reciting  that 
the  fact  of  the  assignment  to  them  by  the  deed  of  the  3d  of  October, 
1811,  was  not  known  to  the  parties  by  whom  the  said  act  was  solic- 
ited, it  is  witnessed,  that  Barber  and  Parrv  did  bargain,  sell  and  sur- 
render. tfl_the  dean  the  whole  of  the  said  Shadwell  estate,  to  the  intent 
that  the  term  of  forty  years,  created  by  the  lease  of  the  26th  oi-Xle - 
cember.  1803,  mio;^lu.be  merged  in  the  freehold,  and  that  the  dean  might 
execute  a  new  lease  to  Osborn  and  Burt  according  to  the  said  act.  By 
the  other  deed,  which  bears  date  the  29th  of  January,  1814,  and  is 
made  between  the  dean  of  the  first  part,  and  the  said  Thomas  Bowes 
of  the  second  part,  and  the  said  Osborn  and  Burt,  of  the  third  part; 
the^dean.  in  consideration  of  the  effectual  surrender  of  the  two  prior^ 
leases  of  the  26th  ot  JJecember,  ISO: 
for  the  61 


act  of  Parliament,  to  Osborn  and  Burt. 
rators.  and  assigns^  for  a  term  of  ninetvtnine 


estate,  pursuant  to  the  sai 
rs,  admim 


their  execu: 

years.     The  interest  of  Osborn  and  Burt,  under  these  two  leases  to 

them,  has,  by  various  assignments,  become  vested  in  the  plaintiff  and 

tl^ere  is  no  doubt  but  thatjig  i§^ entitled  to  recover  the  rent  in  question^     pi 

in  this  action,  if  Osborn  and  Burt  would  have  been  so  entitled 


Such  being  the  principal  facts,  we  must  consider  how  they  bear  on  i 
the  several  issues  raised  by  the  pleadings.  The  declaration,  after  stat-  C' 
ing  the  demise  from  the  dean  to  Ord  and  Planta  in  1803,  and  the  un- 
derlease from  them  to  Reed  in  1808,  goes  on  to  state,  that,  by  the  deed 
of  the  3d  of  October,  1811,  Ord  and  Planta  assigned  all  their  in- 
terest in  the  premises  to  Barber  and  Parry,  and  that  the  dean,  being 
seised  of  the  reversion  expectant  on  the  term  of  forty  vears  so  assigned 
toBarEer  IjTd  Farry,  by  the  indenture  of  the  31st  of  August.  1812. 
demised  tKe'premises  to  Osborn  and  Burt  for  a  term  of  ninety-nine 
yearSj  by  virtue  whereof  they  became  entitled  to  the  reversion  for  that 
term.  The  declaration  then  goes  on  to  state  that,  by  the  indenture 
of  the  6th  of  January,  1814,  Barber  and  Parry  assigned  their  interest 
to  the  dean,  to  the  intent  that  he  might  grant  a  new  lease  to  Osborn 
and  Burt;  and  that  afterwards,  on  the  29th  day  of  the  same  month 
of  January,  1814,  the  dean,  by  the  indenture  of  that  date,  made  a 
new  demise  of  the  premises  to  Osborn  and  Burt  for  a  fresh  term  of 


SU   i^^ytru-^^^f 


224  DERIVATIVE  TITLES  (Part  2 

ninety-nine  years,  they  by  the  same  indenture  surrendering  thejoriner 
term  crejj;e(i  by  the  demise  of  the  31st  of  Augiist^_18|Z  THedecla  ra- 
tion then  traces  the  title  in  the  present  plaintiff  by  assignment  from 
Osborn  and  Burt  previously  to  Christmas,  1820,  and  so  claims  title  to 
the  rent  accrued  due  after  that  date. 

To  this  declaration  the  defendants  pleaded  six  pleas :  First,  a  plea 
traversing  the  averment  that,  at  the  time  of  the  demise  toTTsborn  and 
Burt  of  the  31st  of  August,  1812,  the  dean  was  seised  in  fee  of  the 
reversion.  Secondly  a  plea  traversing  that  demise.  Thirdly,  a  plea 
traversing  the  assignment  by  Barber  and  Parry  to  the  dean,  to  the 
intent  that  he  might  grant  a  new  lease  to  Osborn  and  Burt.  Fourthly, 
a  plea  traversing  the  surrender  by  Osborn  and  Burt  of  the  first  term 
of  ninety-nine  years,  fifthly,  a  special  plea  stating  the  indenture  of 
the  7th  of  April,  1812,  whereby  Ord  and  Planta  became  entitled  to 
the  reversion  for  forty  years  from  Christmas,  1811,  and  so  continued 
imtil,  up  to,  and  after  the  execution  of  the  indenture  of  the  29th  of 
January,  1814.  Sixthly,  a  plea  traversing  the  demise  to  Osborn  and 
Burt  by  the  indenture  of  the  29th  of  January,  1814.  Issue  was  joined 
on  all  the  pleas  except  the  fifth,  and  to  that  the  plaintiff  replied,  that, 
after  the  making  of  the  lease  of  the  7th  of  April,  1812,  and  before  the 
lease  of  the  31st  of  August,  1812,  the  private  act  of  Parliament  was 
passed,  authorizing  the  dean,  on  the  surrender  of  the  existing  lease, 
to  grant  a  lease  for  ninety-nine  years  to  Osborn  and  Burt;  and  the 
replication  then  avers  that  the  lease  of  the  31st  of  August,  1812,  was 
dulv  made  in  pursuance  of  the  act,  and  ttiat.  at  the  time  when  it  was 
made,  the  lease  of  the  7th  of  April.  1812^  was  duly  surrendered.  To 
this  the  defendants  rejoin,  traversing  the  surrender  of  the  lease  of  the 
7th  of  April,  1812,  and  on  this  issue  was  joined.  The  second,  third, 
and  sixth  issues,  it  will  be  observed,  are  mere  traverses  of  the  exe- 
cution of  deeds  which  are  found  by  the  special  case  to  have  been  duly 
executed ;  '  and,  as  the  traverse  merely  puts  in  issue  the  fact  of  the 
execution,  and  not  the  validity  of  the  deeds  or  the  competency  of  the 
parties  to  make  them,  the  verdict  on  those  issues  must  certainly  be 
entered  for  the  plaintiff ;  and  so  must  that  on  the  fourth  issue,  whereby 
the  defendant  traverses  the  surrender  by  Osborn  and  Burt  of  the  first 
term  of  ninety-nine  years,  when  the  demise  of  the  second  term  was 
made  to  them.  It^  is  quite  clear  that  the  acceptance  of  the  second 
demise  was  of  itself  a  surrender  m  law  of  the  first,  even^if  no  surren- 
der m  tact  wa^_ipade.  For  whom,  then,  is  the  verdict  on  the  remain- 
ing issues,  the  first  and  fifth,  to  be  entered?  The  issue  on  the  fifth 
plea  is,  it  will  be  observed,  whether  the  lease  of  the  7th  of  April,  1812, 
was  duly  surrendered  at  the  time  of  the  making  of  the  indenture  of 
J,  the  31st  August,  1812.  And  the  issue  on  the  first  plea  is  substantially 
(  the  same;  for  if  the  plaintiff  succeeds  in  showing  that  the  indenture  of 
1  the  7th  April,  1812,  was  duly  surrendered  as  set  forth  in  his  declara- 
jtion^  then  it  follows  that  the  dean  was  at  that  time  seised  of  the  re- 
Vyersion,  and  so  the  plaintiff  must  succeed  on  the  first  issue;    if,  on 


Ch.  1)  MODE   OP  CONVEYANCE  225 

the  'other  hand,  he  fail  on  the  fifth  issue,  he  must  also  fail  on  the       jjS^^""^ 

first.  "^^^^-^^"^ 

The  real  qiiestinn.  therefore,  for  our  consideration  is,  whether  the/  .^ 
plaintiff  has  succeeded  in  showing  that  the  term  of  the  7th  April  was  * 
surrendered  previously  to  the  execution  of  the  indenture  of  the  31st 
of  August,  1812.  On  this  subject  it  was  argued  by  the  counsel  for 
the  plaintiff,  first,  that  the  circumstances  of  the  case  warranted  the 
conclusion  that  there  was  an  actual  surrender  in  fact;  and  if  that  be 
not  so,  then,  secondly,  that  they  prove  conclusively  a  surrender  in  point 
ofjaw. 

We  will  consider  each  of  these  propositions  separately.     And  first, 
as  to  a  surrender  in  fact.    The  subject-matter  of  the  lease  of  the  7th 
April,  1812,  was,  it  must  be  observed,  a  rpyprc;iQn;    a  matter,  there- 
fore, lyingingrant^ and  not  in  livery,  afld  of  which,  therefore,  there  «**«=^ 
could  be  no  valid  surrender  in  fact  otherwise  than  bv  deed ;   and  what  i^  •^''^'^'^^^^^^^^ 
the  plaintiff  must  make  out,  therefore,  on  this  part  of  his  case  is,  that,    •       »     ^ 


^r^ 


before  tTie  execution  of  the  first  lease  for  nmety-nme  years, 'Ord  and ^'A-i  ^''^^^ 

^^^fanta^y  some  deed  not  now  forthcoming,  assigned  or  Surrendered AjM>'"*^  yj 
to  the  dean  the  interest  which  they  had  acquired  under  the  lease  of 
the  7th  of  April.  But  what  is  there  to  warrant  us  in  holding  that  any 
such  deed  was  ever  executed?  Prima  facie  a  person  setting  up  a  deed 
in  support  of  his  title  is  bound  to  produce  it.  But  undoubtedly  this 
general  obligation  admits  of  many  exceptions.  Where  there  has  been 
long  enjoyment  of  any  right,  which  could  have  had  no  lawful  origin 
except  bv  deed,  then,  in^favour  of  such  enjoyment,  all  necessary  deeds 
may  be  presumed,  if  there  is  nothing  to  negative  such  presumption. 
Has  there,  then,  in  this  case  been  any  such  enjoyment  as  may  render 
it  unnecessary  to  show  the  deed  on  which  it  has  been  founded?  The 
only  fact  as  to  enjoyment  stated  in  this  case  has  precisely  an  opposite 
tendency;  it  is  stated,  so  far  as  relates  to  the  property,  the  rent  of 
which  forms  the  subject  of  this  action,  namely  the  houses,  &c.,  under- 
let to  Reed,  that  no  rent  has  ever  been  paid ;  and  therefore,  as  to  that 
portion  of  the  property  included  in  the  lease  of  April,  1812,  there  has 
certainly  been  no  enjoyment  inconsistent  with  the  hypothesis  that  that 
lease  was  not  surrendered. 

The  circumstances  on  which  the  plaintiff  mainly  relies  as  establish- 
ing the  fact  of  a  surrender  by  deed,  are  the  statements  in  the  two  leases 
to  Osborn  and  Burt,  that  they  were  made  in  consideration,  inter  alia, 
of  the  surrender  of  the  lease  of  the  7th  April,  and  the  fact  of  that 
lease  being  found  among,  the  dean's  instruments  of  title.  These  cir- 
cumstances, however,  appear  to  us  to  be  entitled  to  very  little  weight. 
The  ordinary  course  pursued  on  the  renewal  of  a  lease  is  for  the  les- 
see to  deliver  up'the  old  lease  on  receiving  the  new  one,  and  the  new 
lease  usually  states  that  it  is  made  in  consideration  of  the  surrender 
of  the  old  one.  No  surrender  by  deed  is  necessary,  where,  as  is  com- 
monly the  case,  the  former  lessee  takes  the  new  lease,  and  aU  which 
Aig.Pbop. — 15 


226 


DERIVATIVE   TITLES 


(Part  2 


A-""^. 

Oj^ 


is  ordinarily  done  to  warrant  the  statement  of  the  surrender  of  _the 
old  lease  as  a  part  of  the  consideration  for  granting  the  new  one,  is, 
that  the  old  lease  itself,,  the  parchment  on  which  it  is  engrossed,  is  de- 
livered -UP.  Such  surrender  affords  strong  evidence  that  the  new 
lease  has  been  accepted  by  the  old  tenant,  and  such  acceptance  un- 
doubtedly operates  as  a  surrender  hv  operation  of  law,  and  so  both 
parties  get  all  which  they  require.  We  collect  from  the  documents 
that  this  was  the  course  pursued  on  occasion  of  making  the  lease  of  the 
26th  December,  1803,  and  the  lease  of  the  7th  of  April,  1812;  and  we 
see  nothing  whatever  to  warrant  the  conclusion  that  any  thing  else  was 
done  on  occasion  of  making  the  lease  to  Osborn  and  Burt. 

Wliere  a  surrender  by  deed  was  understood  by  the  parties  to  be 
necessary,  as  it  was  with  reference  to  the  term  assigned  to  Barber  and 
Parry^  there  it  was  regularly  made,  and  the  deed  of  surrender  was 
endorsed  on  the  lease  itself!  There  is  no  reason  for  supposing  that 
the  same  course  would  not  have  been  pursued  as  to  the  lease  of  April, 
1812,  if  the  parties  had  considered  it  necessary.  If  any  surrender 
had  been  made,  no  doubt  the  deed  would  have  been  found  with  the 
other  muniments  of  title.  No  such  deed  of  surrender  is  forth-doming, 
and  we  see  nothing  to  justify  us  m  presuming  that  any  such  deed 
^j -1  eyer_existed.  We  may  add,  that  the  statement  in  the  new  lease,  that 
l*^'  the  old  one  had  been  surrendered,  cannot  certainly  of  itself  afford  any 
evidence  against  the  present  defendants,  who  are  altogether  strangers 
to  the  deed  in  which  those  statements  occur. 

It  remains  to  consider  whether,  although  there  may  have  been  no 
.surrender  in  fact^  the  rirrnrrT^tances  of  the  case  will  warrant  us  in  hold- 
ing^^t  there  was  a  surrender  by  act  and  operation  nf  l^w-  On  the 
part  of  the  plaintiff  it  is  contenaec^^" Tiiat  there  is  sufificient  to  justify 
us  in  coming  to  such  a  conclusion,  for  it  is  said,  the  fact  of  the  lease 
of  the  7th  of  April,  1812,  being  found  in  possession  of  the  dean,  even 
if  it  does  not  go  the  length  as  establishing  a  surrender  by  deed,  yet 
furnishes  very  strong  evidence  to  show,  that  the  new  lease  granted  to 
Osborn  and  Burt  was  made  with  the  consent  of  Ord  and  Planta,  the 
lessees  under  the  deed  of  the  7th  of  April,  1812.  And  this,  it  is  con- 
tended, on  the  authority  of  Thomas  v.  Cook,  2  B.  &  Aid.  119.  and 
Walker  v.  Richardson,  2  AI.  &  W.  882,  is  sufficient  to  cause  a  surrender 
by  operation  of  law. 

In  order  to  ascertain  how  far  those  two  cases  can  be  relied  on  as 
authorities,  we  must  consider  what  is  meant  by  a  surrender  by  opera- 
tion of  law.  This  term  is  applied  to  cases  where  the  owner  of  a  par- 
ticular estate  has  been  a  party  to  some  act,  the  validity  of  which  he 
is  by  law  afterwards  estopped  from  disputing,  and  which  wouldnot 
e  valid  if  his  particular  estate  had  continued  to  exist.  TFere  the 
aw  treats  the  doing  of  such  act  as  amounting  to  a  surrender.  Thus, 
f  lessee  for  years  accept  a  new  lease  from  his  lessor.,  he  is.,estopped 
rom  saying  that  his  lessor  had  not  power  to  make  the  new  lease ;  and, 
as  the  lessor  could  not  do  this  until  the  prior  lease  had  been  surren- 


Ch.  1)  MODE  OP  CONVEYANCE  227 

dered,  the  law  says  that  the  acceptance  of  such  new  lease  is  of  itself  a 
surrender  of  the  former.  So,  if  there  be  tenant  for  life,  remainder  to 
another  in  fee,  and  the  remainderman  comes  on  the  land  and  makes 
a  feoffment  to  the  tenant  for  life,  who  accepts  livery  thereon,  the  ten- 
ant for  life  is  thereby  estopped  from  disputing  the  seisin  in  fee  of 
the  remainderman,  and  so  the  law  says,  that  such  acceptance  of  livery 
amounts  to  a  surrender  of  his  life  estate.  Again,  if  tenant  for  years 
accepts  from  his  lessor  a  grant  of  a  rent  issuing  out  of  the  land  and 
payable  during  the  term,  he  is  thereby  estopped  from  disputing  his  les- 
sor's right  to  grant  the  rent,  and  as  this  could  not  be  done  during  his 
term,  therefore  he  is  deemed  in  law  to  have  surrendered  his  terra  to  the 
lessor. 

It  is  needless  to  multiply  examples ;   all  the  old  cases  will  be  found 
to  depend  on  the  principle  to  which  we  have  adverted,  namely,_an 
act  done  bv_or  to  the  owner  of  a  particular  estate,  the  validity  of  which 
he^  is  estopped  from  disputing,  and  which  could  not  have  been  done 
if_the  particular  estate  continued  to  exist.     ^]he-Jaw  lJTe?:£.^s3j(s^thgt 
tlie .act  itself  araQlinta.to_ja  ^ujTender.    In  such  case  it  will  be  observed      n 
there  can  be  no  question  of  mtention.    The_  surrender  is  not  the  result  ^-{>t^;vvfirikf^  '^ 
of  intention.     It  takes  place  independently,  and  even  in  spite  of  inten->^  /    ^.^a^**'^   *^ 
tion.    Thus,  in  the  cases  which  we  have  adverted  to  of  a  lessee  taking^^^  .     ,^ 

a  second  lease  from  the  lessor,  or  a  tenant  for  life  accepting  a  feoff'-  't^^ct^-^^t'*'^''*^ 
ment  from  the  party  in  remainder,  or  a  lessee  accepting  a  rent-charge 
from  his  lessor,  it  would  not  at  all  alter  the  case  to  show  that  there  was 
no  intention  to  surrender  the  particular  estate,  or  even  that  there  was  ^  'Ajl^ ^ /^ 
an  express  intention  to  keep  it  unsurrendered.  In  all  these  rases  the  ^  ^''^  / 
surrender  would  be  the  act  of  law,  and  would  prevail  in  spite  of  the 
intention  of  the  parties.~  ^rhese  principles  are  all  clearly  deducible 
from  the  cases  and  doctrine  laid  down  in  Rolle  and  collected  in  Viner's 
Abridgment  tit.  "Surrender,"  F  and  G,  and  in  Comyns'  Dig.  tit.  "Sur- 
render," T,  and  I,  2,  and  the  authorities  there  referred  to.  But,  in 
all  these  cases,  it  is  to  be  observed,  the  owner  of  the  particular  estate, 
by  granting  or  accepting  an  estate  or  interest,  is  a  party  to  the  act 
which  operates  as  a  surrender.  That  he  agrees  to  an  act  done  by  the 
reversioner  is  not  sufficient.  Brooke,  in  his  Abridgment,  tit.  "Sur- 
render," pi.  48,  questions  the  doctrine  of  Frowike,  C.  J.,  who  says — 
"If  a  termor  agrees  that  the  reversioner  shall  make  a  feoffment  to  a 
stranger,  this  is  a  surrender,"  and  says  he  believes  it  is  not  law ;  and 
the  contrary  was  expressly  decided  in  the  case  of  Swift  v.  Heath, 
Carthew,  110,  where  it  was  held,  that  the  consent  of  the  tenant  for  life 
to  the  remainderman  making  a  feoffment  to  a  stranger,  did  not  amount 
to  a  surrender  of  the  estate  for  life,  and  to  the  same  effect  are  the 
authorities  in  Viner's  Abr.  "Surrender,"  F,  3  and  4. 

If  we  apply  these  principles  to  the  case  now  before  us,  it  will  be 
seenthat  they  do  not  at  all  warrant  the  conclusion,  that  there  was  a  sur- 
render^f  the  lease  of  the  7th  of  April,  1812^  bvact_  and  nperatian 
oit  lawl    Even  adopting,  as  we  do,  the  argument  ot  tHe  plaintiff,  that 


228  DERIVATIVE  TITLES  (Part  2 

the  delivery  up_by  Ord  and  Planta  of  the  lease  in  question  affords 
cogent  evidence__of  their  having  consented  to  the  making  of  the  new 
leas_e^stdl  there  is  n^estoppel  in^  such  a  case^  It  is  an  act  which,  like 
any  other  ordinary  act  in  pais,  is  capable  of  being  explained,  and  its 
effect  must  therefore  depend,  not  on  any  legal  consequence  necessarily 
attaching  on  and  arising  out  of  the  act  itself,  but  on  the  intention  of 
the  parties.  Before  the  Statute  of  Frauds,  the  tenant  in  possession  of 
a  corporeal  hereditament  might  surrender  his  term  by  parol,  and 
therefore  the  circumstance  of  his  delivering  up  his  lease  to  the  lessor 
might  afford  strong  evidence  of  a  surrender  in  fact;  but  certainly 
could  not,  on  the  principles  to  be  gathered  from  the  authorities,  amount 
to  a  surrender  by  operation  of  law,  which  does  not  depend  on  inten- 
tion at  all.  On_all  these  grounds,  we  ar^  of  opinion  that  there  was  in 
this  case  no  surrender  by  operation  of  law,  and  we  should  have  con- 
sideredJJie  case  asjiyite  clear  had  it  not  been  for  some  modern  rases, 
to  which  we;,  must  now  advert. 

TEe  first  case,  we  believe,  in  which  any  intimation  is  given  that 
there  could  be  a  surrender  by  act  and  operation  of  law  by  a  demise 
from  the  reversioner  to  a  stranger  with  the  consent  of  the  lessee,  is 
that  of  Slone  v.  Whiting,  2  Stark.  236,  in  which  Holroyd,  J.,  intimates 
his  opinion  that  there  could;  but  there  was  no  decision,  and  he  re- 
^  ,  served  the  point.  This  was  followed  soon  afterwards  by  Thomas  v. 
^^  '  /'Cooke,  2  Stark.  408,  2  B.  &  Aid.  119.  That  was  an,adiaD"of  debt  by^ 
r'*'/\fl^  j  landlord  against  his  tenant  from  year  to  year,  under  a  parol  demise. 
/  The  defence  wal,  that  the  defendant  Cooke,  the  tenant,  had  put  an- 
^  other  person  (Parkes)  in  possession,  and  that  Thomas,  the  plaintiff, 
1  had,  with  the  assent  of  Cooke,  the  defendant,  accepted  Parkes  as 
/  his  tenant,  and  that  so  the  tenancy  of  Cooke  had  been  determined. 
V^Thf  Qourt  of  King's  Bench  held,  that  the  tenancv""was  deterrnined. 
by  act  and  operation  of  law. 

It  IS  maiier  oi  great  r^ret  that  a  case  involving  a  question  of  sO' 
much  importance  and  nicety,  should  have  been  decided  by  refusing 
a  motion  for  a  new  trial.  Had  the  case  been  put  into  a  train  for 
more  solemn  argument,  we  cannot  but  think  that  many  considerations 
might  have  been  suggested,  which  would  have  led  the  Court  to  pause 
before  they  came  to  the  decision  at  which  they  arrived.  Mr.  Justice 
Bayley,  in  his  judgment  says,  the  jury  were  right  in  finding  that  the 
original  tenant  assented,  because,  he  says,  it  was  clearly  for  his  bene- 
fit, an  observation  which  forcibly  shows  the  uncertainty  which  the 
doctrine  is  calculated  to  create. 

The...actg>iiLpais  which  bind  parties  by  way_of  estoppel  arejajiijew, 
and  are  pointed  out  by  Lord  Coke.  Co.  Little.  SSTaT'^'Tfiey  are  all  "acts 
which  anciently  really  were,  and  in  contemplation  of  law  have  always 
continued  to  be,  acts  ofjl£tori.ety.  not  less  formal  and  solemn  than  the 
execution  of  a  deed,  ,such  as  livery^  entry,  acceptance  of  an  estate,  and 
tbe  like^  Whether  a  party  had  or  had  not  concurred  in  an  act  of  this 
sort,  was  deemed  a  matter  which  there  could  be  no  difRculty  in  ascer- 


*pi^ 


Ch.  1)  MODE  OF  CONVEYANCE  229 

taining,  and  then  the  legal  consequences  followed.  But  in  what  uncer- 
tainty and  peril  will  titles  be  placed,  if  they  are  liable  to  be  affected 
by  such  accidents  as  those  alluded  to  by  Mr.  Justice  Bayley.  If  the 
doctrine  of  Thomas  v.  Cooke  should  be  extended,  it  may  very  much 
affect  titles  to  long  terms  of  years,  mortgage  terms,  for  instance.  _in 
which  it  frequently  happens  that  there  is  a  consent,  express  or  implied, 
by  the  legal  termor  to  a  demise  from  the  mortgagor  to  a  third  person. 
To  hold  that  such  a  transaction  could,  under  any  circumstances. 
amount  to  a  surrender  by  operation  of  law,  would  be  attended  with 
most  serious  rnnsegnernpf^s, 

The  case  of  Thomas  v.  Cooke  has  been  followed  by  others,  and  acted 
upon  to  a  considerable  extent.  Whatever  doubt,  therefore,  we  might 
feel  as  to  the  propriety  of  the  decision,  that  in  such  a  case  there  was  a 
surrender  by  act  and  operation  of  law,  we  should  probably  not  have 
felt  ourselves  justified  in  overruling  it.  And,  perhaps,  the  case  itself, 
and  others  of  the  same  description,  might  be  supported  upon  the 
ground  of  the  actual  occupation  by  the  landlord's  new  tenants,  which 
would  have  the  eft'ect  of  eviction  by  the  landlord  himself  in  supersed- 
ing the  rent  or  compensation  for  use  and  occupation  during  the  con- 
tinuance of  that  occupation.  But  we  feel  fully  warranted  in  not  ex-  -yy^^^ 
tending  the  doctrine  of  that  case,  which  is  open  to  so  much  doubt, 
especially  as  such  a  course  niight  be  attended  with  very  mischievous  ^-^VT»-/2L^ 
consequences  to  the  security  of  titles. 

If,  in  compliance  with  these  cases,  we  hold  that  there  is  a  surrender 
by  act  and  operation  of  law  where  the  estates  dealt  with  are  corporeal  ..^...^ 

and  in  possession,  and  of  which  demises  may  therefore  be  made  by        VivC"^^ 
parol,  or  writing,  and  where  there  is  an  open  and  notorious  shifting  of  »- — - 

the  actual  possession,  it  does  not  follow  that  we  should  adopt  the^same ' 
doctrine  where  reversions  or  mcorporeal  hereditaments  are  disposed  of, 
which  pass  only  by  deed.  With  respect  to  tnese,  we'think  we  oughtto 
abide  by  the  ancient  rules  of  the  common  law,  which  have  not  been 
broken  in  upon  by  any  modern  decision,  for  that  of  Walker  v.  Richard- 
son, 2  M.  &  W.  882,  which  has  been  much  relied  on  in  argument,  is 
not  to  be  considered  as  any  authority  in  this  respect,  inasmuch  as  the 
distinction  that  the  right  to  tolls  lay  in  grant  was  never  urged,  and 
probably  could  not  have  been  with  success,  as  the  leases,  perhaps, 
passed  the  interest  in  the  soil  itself.  Moreover,  according  to  the  re- 
port of  that  case,  it  would  seem  that  the  new  lessees  had,  before  they 
accepted  their  lease,  become  entitled  to  the  old  lease  by  an  actual  assign- 
ment from  the  old  lessee.  If  this  were  so,  then  there  could,  of  course, 
be  no  doubt  but  that  the  old  lease  was  destroyed  by  the  grant  and  ac- 
ceptance of  the  new  one.  It  is,  however,  right  to  say,  that  we  believe 
this  statement  to  have  crept  into  tlie  report  inadvertently,  and  that 
there  was  not,  in  fact,  any  such  assignment.  The  result  of  our  anxious 
consideration  of  this  case  is,  that  the  verdict  on  the  issues  on  the  first 
plea  and  on  the  rejoinder  to  the  replication  to  the  fifth  plea,  must  be 


230  DERIVATIVE  TITLES  (Part  2 

entered  for  the  defendants,  and  as  those  pleas  go  to  the  whole  cause 
of  action  the  judgment  must  be  for  them.      ^t-cd^Cj  • 

In  the  case,  as  it  was  originally  stated,  it  dia  not  appear  that  there 
had  been  any  change  of  dean  since  the  original  demise  in  1803.  We 
desired  to  have  the  case  amended  on  this  point,  in  order  that  the  fact 
might  appear,  if  the  case  should  be  turned  into  a  special  verdict.  Eor 
during  the  incumbency  of  the  dean,  who  made  the  lease  for  ninetv-nine 
years,  that  lease  would  be  good  independently  of  the  private_act,  and  as 
the  immediate  reversion^  on  which  the  defendant's  lease,  depended^  was 
assigneB  to  the  dean  by  Barber  and  Parry  previously  to  the  demise  of 
the  29th  of  January.  1814.  that  reversion  undoubtedly  passed  to  Os- 
hnni^gnd  j^irj^  fii-irl  would  enablethemTortKeplaintiff  claiming  under 
them,  to  sue  for  the  rent  so  long  as  tlie  estate  of  the  same  dean  con- 
tinued, whether  the  lease  for  ninety-nine  years  was  or  was  not  war- 
ranted by  the  act ;  and  '^n_Hip  pbintifF  might  possibly  have  been  entitled 
to  judgment  non  obstante  veredicto.  It  appears  by  the  case  as  now 
amended,  that  the  Bishop  of  Lincoln  who  was  the  dean  granting  the 
leases  of  ninety-nine  years,  ceased  to  be  dean,  and  was  succ££ded  by 
Dr.  Van  Mildert  in  October,  1820,  before  any  part  of  the  rent  sought 
to  be  recovered  in  this  action  had  accrued  due,  and  therefore  no  ques- 
tion on  this  head  arises. 

Neither  will  the  second  private  act  stated  in  the  case  aM_tl2e_plain.- 
tiff.  It  appears  that,  in  1820,  the  difficulties  in  which  the  parties  had 
involved  themselves  by  neglecting  to  get  a  proper  surrender  of  the 
lease  of  the  7th  of  April,  1812,  was  brought  under  the  consideration 
of  the  Court  of  Chancery,  in  a  suit  there  pending  relative  to  the  af- 
fairs of  the  Bowes  family.  Master  Cox,  by  his  report  of  the  15th  of 
February,  1 1820,  stated,  that  he  was  ofo£inion  that  both  the  leases  of 
ninety-nine  years  were  voTcI,  the  hrst  because  it  was  made  when  the 
original  term  of  forty  years  wardutstanding  in  Barber  and  Parry,  and 
the  latter  because  at  the  time  of  its  creation  the  lease  of  the  7th  of 
April,  1^12,  was  still  outstanding,  thus  showing  clearly  his  opinion  that 
nothing  had  happened  to  cause  a  surrender  of  that  lease  by  operation 
of  law ;  and  he  recommended  that  an  act  of  Parliament  should  be  ob- 
tained to  remedy  the  defect.  His  report  was  afterwards  confirmed,  and 
the  second  act  stated  in  the  case  was  accordingly  obtained.  The  act 
received  the  Royal  assent  on  the  15th  of  July,  1820,  and  i^  wa_s..the'rebv 
enacted,  that  the  lease  of  the  29th  of  January,  1814,  should  be  valid 
to  all  intents  and  purposes ;  and  further,  that  immediately  after  the 
passmg  of  the  act,  the  leases  of  the  26th  of  December,  1803,  the  7th  of 
April.  1812.  and  the  31st  of  August,  1812,  should  be  void  to  all  intents 
and  purposes.  The' effect  of  this  was  to  degtfoy  altogether  the  rever- 
sion in  respect  of  which  the  rent  now  sought  to  be  recovered  was  pay- 
able,^ and  it  may  therefore  well  be  doubted  whether,  even  if  all  the  is- 
sues  had  been  found  for  the  plaintiff,  he  could  have  had  judgment.  It 
is,  however,  sufficient  for  us  to  say  that  the  act  certainly  does  not  enti- 
tle the  plaintiff,  to  any  thing  which  he  would  not  have  been  entitled  to 


Ch.  1)  MODE  OF  CONVEYANCE  231 

if  no  such  act  had  passed.  More  especially  when  it  is  considered,  that, 
by  the  saving  clause,  the  defendants  are  excepted  out  of  the  operation 
of  the  act.  The  result_tl"'^'"pf'^TC  ^'^i  ^J2^  the  verdict  on  the  1st  and  5th 
issues  must  be  entered  for  the  defendant._an_d  on  the  other  issues  for 
the  plaintiff,  and  the  judgment  will  be  for  the  defendant. 
Judgment  for  the  defendant.^ ^ 


XII.  Assignment 

BLACKSTONE'S  COMMENTARIES. 

An  assignment  is  properly  a  transfer,  or  making  over  to  another,  of 
the  right  one  has  in  any  estate ;  but  it  is  usually  applied  to  an  estate  for 
life  or  years. 

Book  2,  star  p.  326. 


9r^ 


XIII.  Defeasance 

BLACKSTONE'S  COMMENTARIES. 

A  defeasance  is  a  collateraLjkcd.  made  at  the  same  time  with  a  feoff- 
ment or  other  conveyance,  contammg  certain  conditions,  upon  the  per- 
forrnance  of  which  the  estate  then  created  may  be  defeated  or  totally 
undone.  -^ 

Book  2,  star  p.  327. 

33  See  5  Irish  Jurist,  117. 

"In  tliis  case,  the  defeiidnnt  hciTip  thp  lessee  in  possession  of  the  premises, 
the  pliiiutiff.  his  huidlord.  wUh  hi.^;  consent,  let  them  to  a  new  tenant.,  and 
piit  him  in  nos.session.  and  Tliscliarged  the  defendant  from  his  liability  as 
tenant.  The  judire  who  tried  the  case  held  that  these  facts  constituted  a 
surrender  by  oijeration  of  law,  and  therefore  a  defence  against  the  plaintiff's 
clafmfor  rent.  The  correctness  of  that  holding  has  been  brought  into  ques- 
tion before  us  in  consequence  of  tlie  opinion  expressed  by  the  Court  of  Ex- 
chequer in  Lyon  v.  Reed,  13  M.  &  W.  2.S5.  .305-.310  (1844);  but  we  are  of  opin- 
ion that  it  is  correct.  *  *  *  Where  there  is  an  agreement  to  surrender  a 
particular  estate,  and  the  possession  is  changed  accordingly,  it  is  more  prob- 
able that  the  legislature  intended  to  give  effect  to  an  agreement  so  proved  as 
a  surrender  by  operation  of  law  than  to  allow  eitlier  party  to  defeat  the 
agreement  by  alleging  the  absence  of  written  evidence.  Although  we  do  not 
ngspnt  to  flif^  observations  upon  the  line  of  ca^-es.  from  Thomas  v.  iCndk. 
d^wnward^ii.  in  the"  learned  and  able  iudLrment  given  in  Lyon  y.  Keed.  IJL-M. 
&  \V.  283  (lM^'4>,"we' wish  to  express  our  entire  concuri'enil'e  m  the  decision  la 
tl^at  ca.st^r"  Lord  "Denman,  C.  J.,  in  Mckells  v.  Atherstoue,  10  Q.  B.  !J44 
(1847).  See.  also,  Wallis  v.  Hands,  [1893]  2  Ch,  75;  Feun^r  v.  Blake,  [1900] 
L.  R.  1  Q.  B.  42G. 

As  to  surrenders  by  operation  of  law  against  the  intent  of  the  parties,  see, 
further,  Van  Reussalaer's  Heirs  v.  Tenniman.  6  Wend.  569  (1831);  Smith  v. 
Kerr.  lOS  N.  Y.  31,  15  X.  E.  70  (1887);  Flagg  v.  Uow,  99  Mass.  18  (186S); 
Thomas  v.  Zumbalen,  43  Mo.  471  (1869) ;  Johnson  v.  Northern  Trust  Co.,  265 
111.  263,  106  N.  E.  814  (1914);  U'N'eil  v.  Pearse,  87  N.  J.  Law,  382,  94  Atl.  312 
(1915). 


//-^- 


232  DERIVATIVE  TITLES  (Part  2 

XIV.  DEVIS15 

LITTLETON'S  TENURES. 

Also,  in  some  boroughs,  by  the  custom,  a  man  may  devise  by  his 
testament  his  lands  and Jenements^  which  he  hath  in  fee  simple  withjji 
the  same  borough  at  the  time  of  his  death ;  and  by  force  of  such  devise, 
he  to  whom  such  devise  is  made,  after  the  death  of  the  devisor,  may 
enter  into  the  tenements  so  to  him  devised,  to^  have  arid  to  hold  to 
him,  after  the  form  and  effect  of  the  devise^,  without  any  livery  Qf 
seisin  thereof  to  be  made  to  him.  &c. 

Section  167.^*  « 


SECTION  2.— UNDER  STATUTE  OF  USES 
L  UsiiS  BEFORE  THE  Statute  of  Uses 


Shortly  after  the  Norman  conquest  a  practice  began  to  grow  up  of 
making  feoffments  of  lands  to  trusted  friends  to  be  held  on  behalf  of 
th ef  coffer  or  a  third  person  or  to  be  disposed  of  as  directed  at  the  tini e 
of  the  conveyance  or  thereafter.^ ^  Under  such  conveyances  the  legal 
ownership  was  of  course  in  the  feoffee,  and  in  his  hands  was  subject 
to  all  the  burdens  and  iiiciden^of  the  feudal  land  law,  to  avoid  many 
of  which  it  became  common  to  make  the  conveyances  to  two  or  mox£-as 
joint  tenants. '^^  This  method  of  disposition  in  its  early  use  was  re- 
sorted to  in  order  that  corporations,  societies  and  individuals  that  were 
incapable  under  the  law  of  owning  land  might  have  the  benefit  there- 
qV^''  Later  it  was  availed  of  to  secure  the  land  to  certain  persons  after 
the  death  of  the  f coffer  or  to  such  persons  as  he  should  nominate  by  his 
last  will,  and  also  as  a  means  of  avoiding  forfeiture  by  reason  of  trea- 
son,  etc.^^ 

84  By  the  Statute  of  Wills  (32  Hen.  VIII,  c.  1),  power  NYfls  given  to  every 
tenant  in  fee  simple  to  dispose  of  all  liis  lands  hold  by  sooai^o  temuv,  aii(i_aL 
twb-thiras  or  b£s  lanas  neld  Dy~l^n^ht-sei:xi£a>  The  Statute  of  12  Car.  II,  c. 
'2i,  wnicn  converted  tlie  tenure  by  kuiglit-service  into  socage  tenure,  had  the 
effect  of  making  all  lands  of  freehold  tenure  disposable  by  will.  FurtlTer,  on 
the  history  of  the  law 'or  wnis,  seelJostigan's  "Cases"  on  Wills,  pp.  3-9. 

There  were  other  modes  of  conveyance  by  special  custom,  as  in  the  case  of 
copy  hold  lands.  On  this  the  student  may  well  consult  2  Blackstone's  Commen- 
taries, c.  22.  , 

35  2  P.  &  M.  Hist.  Eng.  Law  (2d  Ed.)  231.  See  the  same,  pp.  228-232,  for  an 
historical  account  of  the  origin  and  growth  of  "uses."  See,  also.  Holmes  in  1 
L.  Q.  R.  1G2  et  seq. 

so  Williams,  R.  P.  (22d  Ed.)  170,  171;   Leake,  Prop,  in  Land,  80. 

37  2  P.  &  M.  Hist.  Eng.  Law  (2d  Ed.)  231. 

38  Sanders,  Uses  and  Trusts,  10,  17. 


Ch.  1)  1^1^^^  MODE   OP  CONVEYANCE  233 


The  p^son  to  whom  the  land_was  conveyed  came  to  be  called  the 
"feoffee^/tp  uses."  the  person  on  whose  behalf  the  land  was  held  the 
"cestui^iueuse,"  and  the  beneficial  interest  which  the  "cestui"  had  was 
known  as  the  "use."  This  ''use"  was  not  in  any  sense  ownership.  On 
the  contrary  it  distinctlv  was  not  ownership.^°  The  feoffee  to  uses  was 
supposed  to  deal  with  the  property  as  directed  under  the  confidence 
in  which  the  conveyance  to  him  had  been  made  and  to  allow  the  cestui 
que  use  to  have  the  beneficial  occupation  of  the  land  and  to  take  the 
profits  thereof.  The  cestui  que  use  in  possession  with  the  consent  of 
the  holder  of  the  legal  estate,  however,  was  in  the  position,  so  far  as  the 
common  law  courts  were  concerned,  of  a  tenant  at  will.^"  and  a  cestui 
que  use  out  of  possession  in  entering  upon  the  land  without  consent 
could  be  proceeded  against  in  those  courts  as  a  trespasser. 

For  many  years  after  the  practice  of  conveying  land  to  uses  had  be- 
come common  there  was  no  really  effective  way  of  compelling  the  fe- 
offee to  uses  to  observe  the  terms  of  the  confidence,  nor  remedy  against 
one  who  had  proved  unfaithful,*^  Some  time  during  the  reign  of  Ed- 
ward III,  however,  it  seems  that  the  Chancellor,  the  head  of  the  rapidly 
broadening  Court  of  Chancery,  began  to  entertain  proceedings  agains.t 
such  feoft'ees  to  compel  their  observance  of  the  trust  and  the  directions  \y 

qf^tlie  person  on  whose  behalf  they  held.*'^  During  the  time  of  Henry 
VI  it  was  held  that  the  heir  of  the  feoffee  to  uses  was  subject  in  the 
chancery  to  the  same  duties  as  the  feoffee  himself,*^  and  only  a  little 
later  the  remedy  was  extended  as  against  the  transferee  of  the  feoft'ee 
to  uses  who  took  as  a  volunteer  or  with  notice.**  Now  that  a  really 
eft'ective  means  of  enforcing  the  terms  of  the  trust  was  at  hand,  the 
c ustom  of  conveying  lands  to  uses  became  even  more  popular,  so  pop- 
ular in  fact  that  Blackstone  says  that  during  the  civil  commotions  be- 
tween the,  houses  of  Lancaster  and  York  "uses  grew  almost  univer- 

After  the  jurisdiction  of  the  Chancellor  to  enforce  uses  became  well 
established  and  settled,  gradually  the  use  came  to  be  considered  the 
subject  of  ownership  apart  from  the  ownership  of  the  land.  Gour_t_s 
oi  law  recognized  still  only  the  legal  estates;  to  the  law  courts  there 


fA_.use_  is  a  trust  or  confidence  reposed  in  some  other,  which  is  not  issuing 
t  of  the  hind,  but  as  a  thuig  coUateral.  annexed  in  privity  to  the  estate  ot 
the  laud,  and  to  the  person  touching  the  land,  scilicet,  that  cestui  que  use  shall 
take  the  profit,  and  that  the  terre-tenant  shall  make  an  estate  according  to 
his  direction.  So  as  cestui  que  use  has  neither  jus  in  re  nor  jus  ad  rem,  %^ 
OQly  a  confidence  and  trust,  for  which  he  had  no  remedy  b.y  the  common  law, 
but  for  hreach  of  trust  his  remedy  was  only  by  suDpoena  in  chancery."  Co. 
Litt.  272b. 

4  0  Leake,  Prop,  in  Land,  79. 
-  -Ai  Jenks,  A  Short  History  of  English  Law,  p.  97.     In  Williams,  R.  P.  (22a 
Ed.)  171,  it  is  said  that  there  was  a  remedy  for  breach  of  faith  in  the  ecclesias- 
tical courts.     See  Holmes  in  1  L.  Q.  R.  162  et  seq. 

42  Keilw.  42,  pi.  7,  per  Vavasour,  J. 

*3  Id. 

4*  r>urgess  V.  Wheate,  1  Eden,  177,  218  (1759),  per  Mansfield,  C.  J. 

45  2  Bl.  Comm.  *329. 


234  DERIVATIVE  TITLES  (Part  2 


■r: 


could  be  no  such  interest  as  a  "use."  Tlie  "use"  in  equity  tlius  became 
an  equitable  estate  and  equitable  ownership  therein  was  established . * ® 

The  "use"  could  be  transferred,  inherited,  and  devised,  and  the 
equitable  ownership  could  be  divided  up  into  equitable  estates.  It  was 
possible  to  have  in  the  "use"  estates  in  fee  simple,  fee  taiL  etc.,  in  pos- 
session,  or  by  way  of  remainder  or  reversion.^ ^  The  legal  estates  were 
restricted  in  their  creation  and  conveyance  by  the  demands  of  the  law 
regarding  the  seisin,*'*  but  these  equitable  estates  were  not  subi££L.to 
such  restrictions,  there  being  no  seisin^m  the  case  of  a  "use."  Accord- 
ingly an  equitable  estate  of  freehold  could  be  provided  for  to  arise  in 
futuro..  Such  uses  were  known  as. springing  uses.  And  it  was  possible 
to  hmit  a  use  to  a  man  and  his  heirs  that  should  upon  the  happening  of 
an  event  specified  shift  over  to  another  person  and  his  heirs.  Such 
uses  were  known  as  shifting  uses,.  Also  uses  could  be  devised  by  will, 
for  no  livery  of  seisin  was  required  in  the  transfer  of  a  use. 

Jn  case  of  the  death  of  the  cestui  que  use  intestate,  the  use  was  held 
to  descend  to  his  heirs  according  to  the  course  of  the  common  law.  The 
equity  courts  allowed  great  latitude  in  the  creation  of  equitable  estates 
by  purchase,  but  they  djd  not  allow  the  common  law  of  descent  to  i>e 
varied_even  in  the  case  of  a  use.*^ 

^he  use  ccnie  to  be  consirlered  as  a  sort  of  metaphysical  entity  in  which 
_  re  miaht  he  estates  very  similnr  to  those  which  cnnhl  ht^  creati-il  in  liind. 
estates  in  possession,  reiiiaitider.  reversion,  estates  di^sceiidiljle  in  this  way  or 
that."     Maitland,  EquTty,  33. 

47  Id. 

48  "A  feoffment  might  be  made  with  an  express  appropriation  of  the  seisin 
to  a  series  of  estates  in  the  form  of  particnlar  estiite  and  remainders,  and  the 
livery  to  the  inunediate  tenant  was  then  effectual  to  transfer  tlie  seisin  to  or 
on  behalf  of  all  the  tenants  in  remainder,  according  to  the  estates  limited.  Hut 
future  estates  could  only  be  limited  in  the  form  of  remainders,  and  any  Umi- 
tallons  operating  to  shift  the  seisin  otherwise  than  as  remainders  expectant 
vipon  the  determination  of  the  preceding  estate  weie  void  at  common  law. 
Thus,  upon  a  feoffment,  with  livery  of  seisin,  to  \.  for  life  or  in  tail,  and  npou 
the  determination  of  his  estate  to  B.,  the  future  limitation  takes  effect  as  a 
i-emainder  immediately  expectant  upon  A.'s  estate.  But  upon  a  feoff'ment  to 
A.  in  fee  or  for  life,  and  after  one  year  to  B.  in  fee ;  or  to  A.  in  fee,  and  upon 
his  marriage  to  B.  in  fee;  or  to  A.  in  fee  or  for  life,  and  upon  B.  paying  A.  a 
sum  of  money  to  \^.  in  fee. — tljie  limitations  shifting  the  seisin  from  A.  to  B. 


The  exigencies. of  tenure  required  that  the  seisin  or  immediate  freehold  should 
n£.ver  be  in  abeyance,  but  that  there  should  at  all  times  be  a  tenant  investejjL 
^^th  the  seisin  ready,  on  the  one  hand,  to  meet  the  claims  of  the  lord  for  the 
duties  and  services  Of  the  tenure,  and,  on  the  other  hand,  to  meet  adverse 
claims  to  the  seisin,  and  to  preserve  it  for  the  successors  in  the  title.  This 
rule  had  important  effects  upon  the  creation  of  freeliold  estates;  for  it  follow- 
ed as  an  immediate  consequence  of  the  rule,  as  also  from  the  nature  of  the  es- 
sential act  of  conveyance  by  livery  of  seisin,  that  a  grant  of  the  freehold  could 
not  be  made  to  commence  at  a  future  time,  leaving  the"l(Jl!»IU'y  \  acant  duri_iig 
tjLte  interval.  As  11  I'Ulisd'LiuehOtJ  bt  the  same  rule  if  a  feoffment  were  made  to 
A.  for  life  and  after  his  death  and  one  day  after  to  B.  for  life  or  in  fee.  the 
limitation  to  B.  was  void,  bec-ause  it  would  leave  the  freehold  without  a  tenant 
or  in  abe\Lance  for  a  day  after  the  death  of  A."  Leake,  Prop,  in  Laud,  33. 
4  8  Sugden's  Gilbert  on  Uses,  26  et  seq. 


Ch.  1)  MODE  OF  CONVEYANCE  235 

In  jL  use  there  \^as  no  such  thing  as  dower  or  curtesy.^"  and  it  could 
not  be  reached  by  creditors. ^^  Nor  cottlj  a  use  be  tort'elted  for  felony 
or  treason.^''  The  common  law  incidents  of  tenure  were  not  applicable 
to  the  use.  It  is  not  to  be  wondered  that  Bacon  wrote :  "A  man,  that 
had  cause  to  sue  for  land,  knew  not  against  whom  to  bring  his  action 
or  who  was  the  owner  -oi  it.  The  wife  was  defrauded  of  her  thirds ; 
the  husband  of  his  curtesy :  the  lord  of  his  wardship,  relief,  hcriot.  and 
ej^cheat ;  the  creditor  of  his  extent  for  debt:  and  the  poor  tenant  of  his 
lease."  ^^  "To  remedy  these  inconveniences  abundance  of  statutes  were 
provided,  which  made  the  lands  liable  to  be  extended  by  the  creditors 
of  the  cestui  que  use  (Stat.  50  Edw.  Ill,  c.  6;  2  Ric.  II,  sess.  2,  c.  3 ;  19 
Hen.  Vli,  c.  15);  made  him  liable  to  actions  for  waste  (Stat.  11  Hen. 
VI,  c.  5) ;  established  his  conveyances  and  leases  made  without  the  con- 
currence of  his  feoffees  (Stat.  1  Ric.  Ill,  c.  1) ;  and  gave  the  wardship 
of  his  heir,  with  certain  other  feudal  perquisites  (Stat.  4  Hen.  VII,  c. 
17;    19  Hen.  VII,  c.  15)."^* 

These  uses  were  created  upon  a  cpmmon  law  conveyance,  e.  g..  a 
feoffrcenj^nrl  nkn  jnflpppnrlpnfly  nf  such  a  conveyance.    A  feoffment 
tFA.  and  his  heirs  to  the  use  of  B.  and  his  heirs  of  course  created  a  use_ 
in  fee  simple  in  B.     So  commonly  were  conveyances  made  to  hold  to 
the  use  of  the  feoffer  that  it  was  presumed  that  the  use  was  to  remain 
in  him."''^    In  such  cases  the  use  was  said  to  result,  and  was  known  as  a      '"' 
resulting  use.    This  presumption  could  be  rebutted  bv  an  express  limi- 
tation otTTTe  use  to  designated  parties ;  ^"  also  by  showing  that  consider- 
ation was  given  for  the  conveyance  or  that  a  consideration  was  ex- 
pressed.^^    Relationship  between  feoft'er  and  feoffee  was  also  sufficient 
to  rebut  the  presumption  of  a  resulting  use.    And  the  use  could  result  A^^c-k 
in  part,  as  in  a  feoffment  to  A.  and  his  heirs  to  the  use  of  A.  for  life. 
There  the  use  is  in  A.  for  life,  and  the  balance  of  the  use  in  fee  has 
resuhed  to  feoff'er.^*     Consideration  and  recitals  of  consideration  ac-         ^ 
cordingly  became  very  important  in  conveyancing. 

5  0  Id.  pp.  48,  49.  62  Id.  pp.  77,  79. 

51  Id.  pp.  75,  7G.  53  L'se  of  the  Law,  153. 

54  2  l?!.  Coiiim.  *332. 

55  Beckwith's  Case,  2  Co.  5Sa  (15F9) ;  Armstrong  v.  Wolsey,  2  Wils.  19  (1755). 
See  Shoitiidiie  v.  Lauiplusli,  2  Salk.  67S,  2  Ld,  Rayui.  70S,  7  Mod.  71  (1702). 

5  0  Stephen's  Case,  1  Leon.  138  (15SS) ;    Same's  Case,  2  Roll.  Abr.  791. 

6  7  Porter's  Case,  1  Co.  24a  (1592).     See,  generally,  Sanders,  Uses  and  Trusts, 

60,  til.     "If  the  feoffment  or  conveyance  of  t*he  legal  possession  be  made  for  a  /  ^ 

particular  estate  only  as  a  gift  in  tail,  or  a  lease  for  life  or  for  years,  the  ry\^i/i4/9^  ^^ 

tenure  alone  thereby  created^  with  its  attendant  services  and  obligations.  sur>-  ^-' 

plied  a  consideration  sutficient  to  prevent  tne  use  from  resulting,  and  to  carry 

it  to  the  donee  or  lessee:  and  this  doctrine  applies  at  the  present  cTay.    But  au 

express  use  declared  in  favor  of  another  would  rebut  the  use  implied  from 

the  tenure  in  such  cases."    Leake,  Prop,  in  Land,  84. 

58  Co.  Litt.  271b;  Sanders,  Uses  and  Trusts,  101.  And  a  consideration  giv- 
en or  recited  will  be  deemed  to  be  on  account  of  the  use  expressly  provided  for. 
Sanders,  CSSs  and  Ti-ustsri02!  A  te6Ttment  in  fee  to  the  use  of  the  feoffor 
for  life  or  years  will  leave  the  iise  in  fee  in  tht^  f^of[ee.  for  to  allow  the  un- 
disposed of  use  to  result  would  accomplish  by  merger  a  destruction  of  the  use 


dAK^''^ 


(^ 


236  DERIVATIVE  TITLES  (Part  2 

'  Uses  arose  independently  of  a  common-law  conveyance  by  an  agree- 
ment of  sale  of  the  land  supported  by  a  valuable  consideration.^^  Also 
by  a  declaration  or  agreement  in  a  writing  under  seal  by  the  owner  who 
was  seised  that  he  would  thereafter  "stand  seised"  for  the  benefit  of 
some  near  relative.®"  The  former  came  to  be  known  as  a  "bargain  and 
sale,"  the  latter  as  a  "covenant  to  stand  seisgd." 


II.  The  Statute:  of  Ushs 

Where  by  the  common  laws  of  this  realm,  lands,  tenements  and 
hereditaments  be  not  devisable  by  testament,  nor  ought  to  be  transfer- 
red frorn  one  to  another,  but  by  solemn  livery  and  seisin,  matter  of  rec- 
ord, writing  sufficient  made  bona  fide,  without  covin  or  fraud ;  yet 
nevertheless  divers  and  sundry  imaginations,  subtle  inventions  and 
practices  have  been  used,  whereby  the  hereditaments  of  this  realm  have 
been  conveyed  from  nnp  t(7  ^^nntlipr  by  fra,udu1ept  feoffments,  fines,  re- 
covenes,  anH  ntlipr  a'^qnr^nrpg  craftilv  made  to  secret  uses,  intents  and 

■  ■  ' — ~"  7  ■   — -^.   -■■■    _  ' 

trusts  ;  and  also  by  wills  and  testaments,  sometime  made  by  nude  parolx 
and  words,  sometime  by  signs  and  tokens,  and  sometime  by  writing, 
and  for  the  most  part  made  by  such  persons  as  be  visited  with  sickness, 
in  their  extreme  agonies  and  pains,  or  at  such  time  as  they  have  scantly 
had  any  good  memory  or  remembrance ;  at  which  times  they  being  pro- 
voked by  greedy  and  covetous  persons  lying  in  wait  about  them,  do 
many  times  dispose  indiscreetly  and  unadvisedly  their  lands  and  in- 
heritances ;  by  reason  whereof,  and  by  occasion  of  which  fraudulent 
feoffments,  fines,  recoveries,  and  other  like  assurances  to  uses,  confi- 
dences and  trusts,  divers  and  many  heirs  have  been  unjustly  at  sundry 
times  disinherited,  the  lords  have  lost  their  wards,  marriages,  reliefs, 
harriots,  escheats,  aids  pur  fair  fils  chivalier  &  pur  file  marier,jand 
scantly  anv  person  can  be  certainly  assured  of  any  lands  by  th,ern  pur- 
chased, nor  know  surely  against  whom  they  shall  use  their  actions^r 
executions  for  tlidjijights.  titles  and  duties ;  also  men  married  have 
lost  their  tenancies  by  the  curtesy,  women  their  dowers,  manifest  per- 
juries by  trial  of  such  secret  wills  and  uses  have  been  committed;  the 

for  life  or  years  in  the  larger  use  in  fee,  which  would  manifestly  be  contrary 
to  the  intention.  But  it  would  be* otherwise  in  case  the  feoffor  should  provide 
for  the  use  to  himself  and  the  heirs  of  his  body,  for  there  a  merger  woxild  be 
impossible.     Dyer,  111b,  in  margin. 

59  1  Co.  Rep.  176a  (1582-1584);  Barker  v.  Keete,  1  Freem.  249,  2  Vent.  35, 
1  Mod.  262,  2  Mod.  249  (1677),  where  a  rent  of  a  peppercorn  was  deemed  suffl- 
■cient  to  raise  a  use  upon  a  bargain  and  sale. 

60  Sharington  v.  Strotton,  Plowd.  298  (1565).  See  Ricker  v.  Brown,  183  Mass. 
424,  67  N.  E.  353  (1903).  "But  a  covenant  was  not  necessary;  a  declaration 
of  intention  made  by  deed  poll  would  serve  equally  well  (Sljep.  I,  508) ;  a  mere 
parol  promise  was  not  sufficient  (Collard  v.  Collard,  Popl.  47,  Serj.  Moore's  Rep. 
687,  2  Anders.  64  [1593] ;  Page  v.  Moulton,  Dyer,  296a,  pi.  22  [1570])."  Challis 
U.  P.  (3d  Ed.)  419,  420. 


Ch.  1)  MODE   OF  CONVEYANCE  237 

King's  Highness  hath  lost  tlie  profits  and  advantages  of  the  lands  of 
persons  attainted,  and  of  the  lands  craftily  put  in  feoffments  to  the  uses 
of  aliens  born,  and  also  the  profits  of  waste  for  a  year  and  a  day  of 
lands  of  felons  attainted,  and  the  lords  their  escheats  thereof  ;  and  many 
other  inconveniences  have  happened  and  daily  do  increase  among  the 
King  s  subjects,  to  their  great  trouble  and  inquietness,  and  to  the  utter 
subversion  of  the  ancient  common  laws  of  this  realm ;  for  the  extirping 
and  extinguishment  of  all  such  subtle  practiced  feoffments,  fines,  re- 
coveries, abuses  and  errors  heretofore  used  and  accustomed  in  this 
realm,  to  the  subversion  of  the  good  and  ancient  laws  of  the  same,  and 
to  the  intent  that  the  King's  Highness,  or  any  other  his  subjects  of  this 
realm,  shall  not  in  any  wise  hereafter  by  any  means  or  inventions  be 
deceived,  damaged  or  hurt,  by  reason  of  such  trusts,  uses  or  confi- 
dences: it  may  please  the  King's  most  royal  majesty,  That  it  may  be 
enacted  by  his  Highness,  by  the  assent  of  the  lords  spiritual  and  tem- 
poral, and  the  commons,  in  this  present  parliament  assembled,  and  by 
the  authority  of  the  same,  in  manner  and  form  following;  that  is  to 
say.  That  where  any  person  or  persons  stand  or  be  seised,  or  at  any 
time  hereafter  shall  happen  to  be  seised,  of  and  in  any  honours,  castles, 
rnanors.   lands,  tenements,   rents,  services,   reversions,   remainders  .or  <■ 

other  hereditaments^o  the  use,  confidence  or  trust  of  any  other  per-  /T" 

son  or  persons.  oF ot  any  body  politick,  b}^  reason  of  any  bargain,  sale, 
feoffment,  fine,  recovery,  covenant,  contract,  agreement,  will  or  other- 
wise^ J)  V  any  manner  means  whatsoever  it  be;  that  in  every  such. case, 
all  and  every  such  person  and  persons,  and  bodies  politick,  that  have  or 
hereafter  shall  have  any  such  use,  confidence  or  trust,  in  fee  simple, 
fe_e  tajl,  for  term  of  life  or  for  years,  or  otherwise,  or  any  use.  confi<- 
dence-or  trust,  in  remainder  or  reverter,  shall  from  henceforth  staad 
and  be  seised,  deemed  and  adjudged  in  lawful  seisin.  esta^T  ^^^^  P""- 
session  of  and  in  the  same  honours,  castles,  manors,  lands,  tenements- 
rents,  services,  reversions,  remainders,  and  hereditaments,  with  their 
appurtenances,  to  all  intents,  constructions  and  purposes  in  the  law,  of 
and  jn  .such  like  estates  as^tliey  had  or  shall  have  in  use,  trust  or  confi- 
dence of  or  in  the  same; "and  tnat  the  estate,  title,  right  and  possession 
that  was  m  such  person  or  persons  that  were,  or  hereafter  shall  be 
seised  of  any  lands,  tenements  or  hereditaments,  to  the  use,  confidence 
or  trust  of  any  such  person  or  persons,  or  of  any  body  politick,  be  from 
henceforth  clearly  deemed  and  adjudged  to  be  in  him  or  them  that 
have,  or  hereafter  shall  have^  such  use^  confidence  or  trust,  after  such 
quality,  manner,  form  and  rondilinn  .qg  tlipy  HaH  hpfnrp  in  or  tn  the 
use,  confidence  or  trust  that  was  in  them. 

n.  And  be  it  further  enacted  by  the  authority  aforesaid,  Tliat  where 
divers  and  many  persons,  be  or  hereafter  shall  happen  to  be,  jointly 
seised  of  and  in  any  lands,  tenements,  rents,  reversions,  remainders  or 
other  hereditaments,  to  the  use,  confidence  or  trust  of  any  of  them 
that  be  so  jointly  seised,  that  in  every  such  case  that  those  person  or 
persons  which  have  or  hereafter  shall  have  any  such  use,  confidence 

S^e^ttte    of   Us<:s.-. — 


238  DERIVATIVE  TITLES  (Part  2 

or  trjst  in  any  such  lands,  tenements,  rents,  reversions,  remainders  or 
hereditaments,  shall  from  henceforth  have,  and  be  deemed  and  ad- 
judged to  have  only  to  him  or  them  that  have,  or  hereafter  sliall  have 
any  such  use,  confidence  or  trust,  such  estate,  possession  and  seisin,  of 
and  in  the  same  lands,  tenements,  rents,  reversions,  remainders  and 
other  hereditaments,  in  like  nature,  manner,  form,  condition  and  course 
as  he  or  they  had  before  in  the  use,  confidence  or  trust  of  the  same 
lands,  tenements  or  hereditaments ;  saving-  and  reserving-  to  all  and 
smgular  persons  and  bodies  politick,  their  heirs  and  successors,  other 
than  those  person  or  persons  which  be  seised,  or  hereafter  shall  be 
seised,  of  any  lands,  tenements  or  hereditaments,  to  any  use,  confi- 
dence or  trust,  all  such  right,  title,  entry,  interest,  possession,  rents  and 
action,  as  thev  or  any  of  them  had,  or  mi.ght  have  had  before  the  mak- 
ing_£tiJllis_acjt. 

III.  And  also  saving  to  all  and  singular  those  persons,  and  to  their 
heirs,  which  be,  or  hereafter  shall  be  seised  to  any  use,  alj^such  former 
rij^ht,  title,  entry,  interest^_possession.  rents,  customs,  services  and  ac- 
tion.  as  thev  or  anv  nf  t]'\p\]^  miV1-||-  \^^ye.  had  tn  his  or  their  own  proper 
use,  in  or  to  any  manors,  lands,  tenements,  rents  or  hereditamgnjs. 
whereof  thev  be.  .or  hereafter  shall  be  seised  to  any  other  use,  as  if  this 
present  act  had  never  been  had  nor  made ;  any  thing  contained  in  this 
act  to  the  contrary  notwithstanding. 

IV.  And  where  also  divers  persons-stand  and  be  seised  of  and  in  any 
lands,  tenements  or  hereditaments,  in  fee-simple  or  otherwise,  to  the 
use  and  intent  that  some  other  person  or  persons  shall  have  and  per- 
ceive yearly  to  them,  and  to  his  or  their  heirs,  one  annual  rent  of  x.  li. 
or  more  or  less,  out  of  the  same  lands  and  tenements,  and  some  other 
person  one  other  annual  rent,  to  him  and  his  assigns  for  term  of  life  or 
years,  or  for  some  other  special  time,  according  to  such  intent  and  use 
as  hath  been  heretofore  declared,  limited  and  made  thereof : 

V.  Be  it  therefore  enacted  by  the  authority  aforesaid.  That  in  every 
such  case  th£,aaJIL£.  persons,  theirheirs  and  assigns,  that  have  such  use 
and  interest,  to  have  an  J  perceive  any  such  annual  rents  out  of  any 
lands,  tenements  or  hereditaments,  that  they  and  every  of  them,  their 
hgirs  and  assigns,  be  adjudged  and  deemed  to  be  in  possession  and 
seisin  of  the  samp  rpnt.  nf  anH  I'n  qhpIi  HV^  PQfaf^  oc  th^y  In^^  j^^  the 
title,  interest  or  use  of  the  said  rent  or  profit,  and  as  if  a  sufficient  grant, 
or  other  lawful  conveyance  had  been  made  and  executed  to  them,  by 
such  as  were  or  shall  be  seised  to  the  use  or  intent  of  any  such  rent  to 
be  had,  made  or  paid,  according  to  the  very  trust  and  intent  thereof, 
and  that  all  and  every  such  person  and  persons  as  have,  or  hereafter 
shall  have,  any  title,  use  and  interest  in  or  to  any  such  rent  or  profit, 
shall  lawfully  distrain  for  non-payment  of  the  said  rent,  and  in  their 
own  names  make  avowries,  or  by  their  bailiffs  or  servants  make  conis-. 
ances  and  justifications,  and  have  all  other  suits,  entries  and  remedies 
for  such  rents,  as  if  the  same  rents  had  been  actually  and  really  granted 
CO  them,  with  sufficient  clauses  of  distress,  re-entry,  or  otherwise,  ac- 


Ch.  1)     '  MODE   OF  CONVEYANCE  239 

cording  to  such  conditions,  pains,  or  other  things  hmited  and  appointed, 
upon  the  trust  and  intent  for  payment  or  surety  of  such  rent. 
St.  27  Hen.  VIII,  c.  10.«^ 


III.  Uses  After  Statute  of  Uses 

{A)   Uses  Raised  in   Connection  with   a  Common-Law   Conveyance 

GREEN  V.  WISEMAN. 

(Court  of  Common  Pleas,  1600.     Owen  8G.) 

In  an  ejectment.  The  defendant  pleaded  that  a  feoffment  was  made 
to  the  useof  T.  S.  the  lessor  of  the  defendant,  who  by  force  thereof, 
and  of  tETstatute.  was  seised,  and  made  a  lease  to  the  defendant ;  and 
that  one  Green  entered  and  made  a  lease  to  the  [>laintiff,  and  did  not 
say  that  he  entered  upon  J.  S.  And  all  the  question  was,  whether 
when  a  feoffment  is  made  to  the  use  of  another,  if  he  have  such  a  seisi 


before  his  entrv.  whereof  he  may  be  disseised. 

Glanvile.  He  hath  no  freehold,  neither  in  deed  nor  in  law  before 
entry. 

WalmselEy.  This  is  contrary  to  all  the  books:  for  a  possession 
in  law  is  so  translated  from  the  feoffee  to  cestui  que  use,  that  the  wife 
of  the  feoffee  shall  not  be  endowed. 

Owen.    He  ought  to  have  alleged  a  disseisin. 

Anderson.     As  he  might  have  possession  by  force  of  a  devise  at 
common  law,  so  he  shall  have  possession  of  the  land  here  by  force 
of  the  statute,  and  it  is  in  cestui  que  use,  before  agreement  or  entry, 
but  if  he  disagree,  then  it  shall  be  out  of  him  presently  but  not  before  ^  ^  fZ 
he  disagree.     And  after  viz.  Hillar.  42  Eliz.  ^       .     .^ 

Williams  moved  the  case  again,  and  WalmselEy  said  then,  that  he  ^T*^'^*  -^ 
might  be  disseised  before  his  entry  or  agreement,  and  the  pleading   ^  i^, 
shall  be  that  he  did  enter,  and  did  disseise  him,  but  he  shall  not  have 
a  trespass  without  actual  entrv,_  for^jhatisgrounded  on  a  possession : 
Glanvill  agreed  to  this,  and  advisedWTiliams  to  adventure  the  case 
thereupon. *^^ 

ci  As^  to  how  far  the  Statute  of  TTses  is  a  part  of  the  law  of  the  American      ^l^ft^^fy 
states.'-see  1  Perry  oh  Trusts  (titb  Ed.)  §  2'J!)n.  "  '        '         ^ 

62  See  Heelis  v.  Blain,  IS  C.  B.  (N.  S.)  90  (1864) ;  Hadfield's  Case,  L.  R.  8  C. 
P.  306  (1872) :  Witham  v.  Brooner,  63  111.  344  (lS72j ;  Hutchius  v.  Heywood,  50 
N.  H.  491  (1871). 

In  Egerton's  Case,  Cro.  Jac.  525  (1619),  it  was  held  that  a  fine  levied  "to 
the  use  of  the  wife  of  J.  S."  save  to  the  wife  an  estate  for  life  only.  Lucas 
V.  Brandreth,  28  Beav.  274  (ISCO) ;  McElroy  v.  Same,  113  Mass.  509  (1S73) ; 
Nelson  v.  Davis,  35  Ind.  474  (1871),  ace 


24:0  DERIVATIVE  TITLES  (Part  2 

SHORTRIDGE  v.  LAMPLUGH. 

(Court  of  King's  Bench,  1702,    2  Salk.  678.) «' 

H.  brought  covenant  as  assignee  of  a  reversjgn,  and  shewed,  that 
tlie  lessor,  in  consideration  of  5/.  bargained  and  sold  to  him  for  a 
year,  and  afterwards  released  to  him  and  his  heirs,  yirtute  quarundam 
indentur,  bargainse  venditionis  &  relaxationis  necnon  vigore  statuti  de 
usibus,  &c.  he  was  seised  in  fee-  And  it  was  objected,  that  the  use 
must  be  intended  to  be  to  the  releasor  and  his  heirs,  because  no  con- 
sideration of  the  release  nor  express  use  appeared  by  the  pleading; 
so  that  without  considering  the  operation  of  tlie  conveyance,  tlie  ques- 
tion was  upon  the  pleading.  Whether  the  use  shall  be  intended  to  the 
releasor,  unless  it  be  averred  to  be  to  the  releasee?  Et  per  Holt,  C. 
J.,  to  which  the  rest  agreed. 

This  way  of  pleading  was  certainly  good  before  the  statute  27  H, 
8,  so  is  Plowd.  478;  and  many  precedents  in  Co.  Ent.  of  feoffments 
averred  in  the  same  manner ;  for  the  use  was  a  matter  that  was  ex- 
trinsical to  the  deed,  and  depended  upon  collateral  agreements  at 
common  law,  and  then  the  use  might,  as  since  the  statute  of  frauds 
by  writing,  be  averred  by  parol,  and  therefore  in  pleading  the  convey- 
ance was  taken  to  the  use  of  him  to  whom  the  convevance  was  made, 
till  the  contrary  appeared :  if  it  were  otlierwise.  it  ought  to  come  on 
the  other  side;  and  27  H.  8  has  not  altered  tlie  course  of  pleading, 
which  is  rather  confirmed  by  the  statute;  because,  if  now  the  use  be 
construed  to  be  to  Jhe  releasor  or  feoffor,  the  conveyance  will  be  to.no 
rnanner  of  purpose,  it  being  still  the  old  estate  to  which  the  old  war- 
ranty  and  other  qualities  remain  annexed ;  whereas  before  the  statute 
there  might  be  some  end  in  making  the  feoffment,  viz.  to  put  the  free- 
hold out  of  him  and  prevent  wardship ;  and  Co.  Lit.  goes  no  farther, 
than  where  there  is  a  feoffment  to  particular  uses  and  estates,  the 
residue  of  the  use  shall  be  to  the  feoffor,  which  is  reasonablej._for 
the  raising  those  particular  estates  appears  a  sufficient  reasonfor  tlie 
c^nvpyanrp  And  PowEL,  J.  doubted,  whether  there  could  be  a  re- 
sulting use  on  a  lease  and  release,  unless,  where  particular  uses  are 
limited ;  for  this  way  of  conveyance  is  grounded  on  the  ancient  way 
of  releasing  at  common  law,  wherein  there  was  a  merger  of  estate, 
which  is  a  good  consideration,  as  where  the  lessor  confirms  to  the  lessee 
and  his  heirs.     In  error  of  a  judgment  of  C.  B.  which  was  affirmed. 

63  The  case  is  also  reported  in  2  Ld.  Raym.  79S,  and  in  7  Mod.  71. 


-^ft^At 


Ch.  1)  MODE  OF   CONVEYANCE  241 

"^  ^ARMSTRONG  v.  WOLSEY. 

(Court  of  Common  Bench,  1756.     2  Wils.  19.) 

Ejectment,  tried  at  Norwich  before  Parker,  Ch.  Baron,  who  re- 
served this  short  case  for  the  opinion  of  the  Court.  A.  B.  beingLin 
possession  of  the  lands  in  question,  levied  a  fine  sur  co^usans  de  droit 
corne_ceo,  &c.,  with  prodamations  to  the  conusee  and  his  heirs,  in  tlie 
6th  year  of  the  present  King,  without  any  consideration  expressed,  and 
widiout  declaring  any  use  thereof :  nor  was  it  proved  that  the  conusee 
was  ever  in  possession.  ^ — 

So  that  the  single  question  is,  whether  the  fine  shall  enure  to  the  m^  ^  ~^ 

of  the  conusor  or  the  conusee,?    And  after  two  arguments,  the  Court 1— ^ 

was  unanimous,  and  gave  judgment  for  the  plaintiff,  who  claimed  as 
heir  of  the  conusor. 

Curia — In  the  case  of  a  fine  come  ceo.  &c..  where  no  uses  are  de- 
clared, whether  the  conusor  he  in  possession^  or  the  fine  be  of  a  x%- 
version.  it  shall  enure  to  the  old  uses,  and  the  conusor  shall  be  in  of 
the  ol3  use ;  and  although  it  passes  nothing,  yet  after  five  years  and 
non-claim  it  will  operate  as  a  bar. 

And  in  the  case  of  a  recovery  suffered,  the  same  shall  enure  to 
the  use  of  him  who  suffers  it,  (who  is  commonly  the  vouchee,)  if  no 
uses  be  declared ;  but  he  gains  a  new  estate  to  him  and  his  heirs  gen- 
eral; and  although  before  the  recovery  he  was  seised  ex  parte  ma- 
terna,  yet  afterwards  the  estate  will  descend  to  his  heirs  ex  parte 
paterna,  as  was  determined  in  Martin  v.  Strachan,  ante.  (1  Wils.  2, 
66.)     Sed  vide  tliat  case,  2  Stra.  1179. 

In  the  case  at  Bar,  the  ancient  use  was  in  the  conusor  at  the  time 
of  levying  the  fine;  and  it  seems  to  have  been  long  settled  before  this 
case,  that  a  fine  without  any  consideration,  or  uses  thereof  declare^, 
shall  enure  to  the  ancient  use  in  whomsoever  it  was  at  the  time  of  levy- 
JT^^y  the  fine;  ^r\(\  ^'^  it  vv;;^^  here  in  the  COnusor  at  that  t^ITlP,  *^^^  'y^\- 
ment  must  be  for  tlie  plaintiff."* 


VAN  DER  VOLGEN  v.  YATES. 

(Court  of  Appeals  of  New  York,  1853.     9  N.  Y.  219.) 

On  the  27th  of  April,  1790,  Nicholas  Van  der  Volgen  owned  a  lot 
in  Schenectady,  the  land  out  of  which  this  controversy  arose.  On  that 
day,  by  indenture  of  release  reciting  that  the  releasees  were  in  posses- 
sion of  the  premises  "by  virtue  of  a  bargain  and  sale  to  them  thereof 
made  for  one  whole  year,  by  indenture  bearing  date  the  day  next  be- 

64  See  Grev  v.  Grev,  2  Swans.  594,  598  (1677) ;   Jackson  v.  Cleveland,  15  Mich. 
94,  90  Am.  Dec.  266  (1866) ;   Blodgett  v.  Hildreth,  103  IMass.  484  (1870). 
Aig.Pkop.— 16 


242  DERIVATIVE  TITLES  (Part  2 

fore  the  day  of  the  date  of  these  presents,  and  by  force  of  the  statute 
^for  transferring  uses  into  possession,"  and  in  consideration  of  £100. 
^Omju^^^^ji^    1  paid  by  the  releasees,  he  released  the  premises  to  Robert  Alexander 
\  and  seven  other  persons  named,  of  whom  Joseph  C.  Yates,  the  original 
<^-^U^  [  defendant  in  this  action,  was  one,  "and  to  their  heirs  and  assigns^For- 

"Z^'J^^^         ever."     The  deed  then  declared  that  the  conveyance  was  "upgntrusi, 
(J  >.  nevertheless,  to  the  only  proper  use,  benefit  and  behoof  of  Cornelms 

-,^        ^       (  Van  Dyck,"  and  twelv^  other  persons  named^  "members  of  St.  George's 
\M^^'     )  Lodge,  m  the  town  of  Schenectady,  and  all  others  who  at  present  are 
J  or  hereafter  may  become  members  of  the  same,  their  survivorsand 
*  I  successors  forever,  and  to  and  for  no  other  use,  intent  and  purpose 
\  whatsoever."     Then  follows  a  covenant  for  further  assurance  to  the 
releasees,  their  heirs  and  assigns,  "to  and  for  the  uses  and  purposes 
hereinbefore  specified  and  more  particularly  mentioned;"  and  a  cove- 
nant for  the  quiet  and  peaceable  possession  of  the  releasees,  their  heirs 
and  assigns,  "for  the  uses  and  purposes  aforesaid."    No  conveyance  of 
the  premises,  subsequent  to  this,  was  ever  made. 

In  1797  Nicholas  Van  der  Volgen  died,  leaving  a  will  in  which,  not 
having  specifically  disposed  of  the  reversion  of  the  premises  in  ques- 
tion, he  made  Lawrence  and  Petrus  Van  der  Volgen  his  residuary 
devisees.    In  1819  Petrus  died,  having  devised  all  his  estate  by  willjo 
Myndert  Van  der  Volgen,  Lawrence  and  Myndert  being  thus  the  legal 
representaTtives  of  Nicholas  m  any  devisaPie  estate  in  the  premises 
which  he  may  have  had  at  the  time  of  his  death. 
f/fu  ^  d/^y,       I^  1S33  the  act  to  incorporate  the  Utica  and  Schenectady  Railroad 
yUA^*'*^^^  Company  was  passed.     Under  its  authority  the  company  instituted 
•^     J  proceedings  to  appropriate  the  lot  in  question  to  the  use  of  the  road. 

i/t/v*^'  To  these  proceedings  Lawrence  and  Myndert  Van  der  Volgen,  Joseph 

C.  Yates,  now  the  sole  survivor  of  the  releasees  in  the  before  mention- 
ed conveyance,  and  certain  persons  claiming  to  be  members  of   St. 
George's  Lodge  were  made  parties,  all  of  the  cestuis  que  use  named 
^^  in  that  instrument  being  dead.     The  commissioners  awarded  six  cents 

Jly*^^^  I  to  the  two  Van  der  Volgens,  and  $2755  to  Yates  "as  trustee  under  Jhe 

I  aA^   release;"    and  the  two  former  filed  their  bill  in  chancery  against  the 

Sfl^/^^^^         latter  to  compel  the  payment  of  the  money  to  them  as  the  representa- 
aA  '  tives  of  the  releasor,  and  entitled  to  the  land  or  its  proceeds.     The 

vice-chancellor  (Gridley)  dismissed  the  bill,  and  this  decree  was  affirm- 
ed by  the  chancellor  (Walworth).  3  Barb.  Ch.  242.  The  complainants 
appealed  to  this  court. 

All  the  original  parties  to  the. action  had  died  since  the  commence- 
ment of  the  suit,  and  their  personal  representatives  were  the  present 
parties. 

RuGGLES,  Ch.  J.  In  determining  this  case  it  will  be  assumed  that 
the  deed  executed  by  Nicholas  Van  der  Volgen  to  Robert  Alexander 
and  seven  others  for  the  use  of  Cornelius  Van  Dyck  and  twelve  others, 
was  a  valid  conveyance  by  lease  and  releas-C.  operating  by  fpnce  ofthe 
statute  ofTuses.  to  vest  in_\la.n  Dyck  and  other'?  ^y|in  nrp  t^pppjally  nam- 


Ch.  1)  MODE   OP  CONVEYANCE  243 

ed  as_cestins  que  use,  an  estate  for  their  joint  lives  and  the  life  of  the 
survivor  but  not  an  estate  in  fee ;  and  that  the  limitation  of  the  fur- 
ther use  to  "all  others  who  were  then  or  thereafter  might  become  mem- 
bers of  St.  George's  Lodge,  their  survivors  and  successors  forever," 
was  vokl  for  uncertainty ;  and  that  the  use  of  equjiabl^Jnter^  thus 
attempted  to  be  given  to  the  members  of  the  lodge  not  specially  named, 
cannot  be  sustained  either  as  a  legal  estate  bv  force  of  the  statute  of 
uses,  or  as  an  executory  trust,  or  as  a  charitable  use.  Upon  these  as- 
sumptions the  only  remaining  question  is  whether  upon  the  death  of^ 
the  last  surviving  cestui  que  use  the  estate  resulted  back  to  the  reprgi 
sentatives  of  the  grantor,  who  are  the  complainants.  If  it  did  so,  thc}'^ 
are  entitled  to  the  money  in  controversy,  otherwise  not. 

Before  the  statute  of  uses,  and  while  uses  were  subjects  of  chancery 
jurisdiction  exclusively,  a  use  could  not  be  raised  by  deed  without  a 
sufficient  consideration ;  a  doctrine  taken  from  the  maxim  of  the  civil 
law,  ex  nudo  pacto  non  oritur  actio.  In  consequence  of  this  rule  the 
court  of  chancery  would  not  compel  the  execution  of  a  use,  unless  it 
had  been  raised  for  a  good  or  valuable  consideration ;  for  that  would 
be  to  enforce  donum  gratuitum.  1  Cruise,  tit.  xi,  ch.  2,  §  22.  _^id 
where  a  man  made  a  feoffment  to  another  w^ithout  any  consideration.  yji* 

equity  presumed  that  he  meant  it  to  the  use  of  himself :  unless  he  ex- 
pressly declared  it  to  be  to  the  use  of  another,  and  then  nothing  was 
presumed  contrary  to  his  own  expressions.  2  Bl.  Com.  330.  If  a  per- 
son had  conveyed  his  lands  to  another  without  consideration,  or  dec- 
laration of  uses,  the  grantor  became  entitled  to  the  useor  pernancy  of 
the  profits  of  the  lands  thus  conveyed. 

This  doctrine  was  not  altered  by  the  statute  of  uses.     Therefore  it    />">■  ^  a   •/   /I 
became  an  established  principle,  that  where  the  Ic.gal  seizin  or  pos_ses-  t/yt^L^O-'*^''*^ 
sion  of  lands  is  transferred  by  any  common  law  conveyance  or  assur-   C^   l,,*.**^^ 
ance,  and  no  use  is  expressly  declared,  nor  any  consideration  or  evi-    ^  '' 

dence  of  intent  to  direct  the  use,  such  use  shall  result  back  to  the  origi- 
nal owner  of  the  estate ;  fon^h^re  there_is  neither  consideration  noj- 
declaration_ofuseSj  nor  any  circumstance  to  show  the  intention  of  the 
parties^  it  cannot  be  supposed  that  the  estate  was  intended  to  be  given 
away.    1  Cruise,  tit.  ii.  ch.  4,  §  20. 

But  if  a  valuable  consideration  appears,  equity  will  immediately  \  (jiA  A/y^'^CJ^ 
raise  a  use_correspondcnt  to  such  consideration.    2  Bl.  Com.,  330.    And/ 
{J  in_such  case  no  use  is  expressly  declared,  the  person  to  >vhniTi  ther    G{h^» 
legal  estate  is  conveyed,  and  from  whom  the  consideration  moved,  wjllj 
be  entitled  to  the  use.    The  payment  of  the  consideration  leads  the  use/ 
unless  it  be  expressly  declared  to  some  other  person.    The  use  results 
to  tlie  original  owner  where  no  cnnsidergtinn  appears,  because  it  can- 
not be  supposed  that  the  estate  was  intended  to  be  given  away  ;  and  by  ^-^ 
the  same  rule  it  will  not  result  where  a  consideration  has  been  paid, 
because  in  such  case  it  cannot  be  supposed  that  the  parties  intended 
the  lajid  should  go  back  to  him  who  had  been  paid  for  it. 

The  statute  of  uses  made  no  change  in  the  equitable  principles  which 


/ 


^ 


244  DERIVATIVE  TITLES  (Part  2 

previously  governed  resulting  uses.  It  united  the  legal  and  equitable 
estate,  so  that  after  the  statute  a  convevance  of  the  use  was  a  convey- 
ance of  the  land:  and  the  land  will  not  result  or  revert  to  the  original 
owner  except  where  the  use  would  have  done  so  before  the  statute  was 
passed.    Cruise,  tit.  x,  ch.  4,  §  20. 

It  is  still  now,  as  it  was  before  the  statute,  "the  intention  of  the  par- 
ties  to  be  collected  from  the  face  of  the  deed  that  gives  effect  to  result- 
ingjjses^'     1  Sanders  on  Uses,  104  (Ed.  of  1830). 

As  a  general  rule  it  is  true  that  where  the  owner  for  a  pecuniary 
consideration  conveys  lands  to  uses,  expressly  declaring  a  part  of  the 
use,  but  making  no  disposition  of  the  residue,  so  much  of  the  use  as 
the  owner  does  not  dispose  of  remains  in  him.  Cruise,  tit.  xi,  ch.  4,  § 
21.  For  example,  if  an  estate  be  conveyed  for  valuable  consideration 
to  feoffees  and  their  heirs  to  the  use  of  them  for  their  lives,  the  re- 
mainder of  the  use  will  result  to  the  grantor.  In  such  case  the  intent 
of  the  grantor  to  create  a  life  estate  only  and  to  withhold  the  residue 
of  the  use  is  apparent  on  the  face  of  the  deed  ;  the  words  of  inheritance 
in  the  conveyance  being  effectual  only  for  the  purpose  of  serving  the 
declared  use.  The  consideration  expressed  in  the  conveyance  is  there- 
fore deemed  an  equivalent  only  for  the  life  estate.  The  residu£-of  the 
use  remains  in  or  results  to  the  grantor,  because  there  was  no  grant 
of  it,  nor  any  mtention  to  grant  it,  and  because  it  has  never  been  paid 

But  the  general  rule  above  stated  is  clearly  inapplicable  to  a  case  in 
•  'f'Jiu^  which  the  intention  of  the  grantor,  apparent  on  the  face  of  thejdeed. 
fjji  //^  A'**'*^  J^to  dispose  of  the  entire  use,  or  m  other  words  of  his  whole  estate  in 
he  land.  Such  is  the  case  now  before  us  for  determination.  The 
consideration  expressed  in  Van  der  Volgen's  deed  was  £100;  and  it  is 
perfectly  clear  on  the  face  of  the  conveyance  that  he  intended  to  part 
with  his  whole  title  and  interest  in  the  land.  He  limited  the  use  by  the 
terms  of  his  deed  "to  Cornelius  Van  Dyck  and  twelve  other  members 
of  St.  George's  Lodge  in  the  town  of  Schenectady,  and  all  others  who 
at  present  are,  or  hereafter  may  become  members  of  the  same,  their 
survivors  and  successors  forever."  He  attempted  to  convev  the  use 
and  beneficial  interest  to  the  members  of  that  Indole  either  as  a  corpo- 
rate body,  capable  of  takmg  bv  succession  forever,  or  to  that  associa- 
tion for  a  charitable  use  or  perpetuitv.  In  either  case,  if  the  convey- 
ance had  taken  effect  according  to  the  grantor's  intention,  it  \vould 
have  passed  his  whole  title,  and  no  part  of  the  use  could  have  result- 
ed to  him  or  his  representatives. 

Admitting  that  the  declaration  of  the  uses  was  void  except  as  to  the 
cestuis  que  use  who  were  specially  named,  and  good  as  to  them  only 
for  life,  yet  it  cannot  be  doubted  that  the  parties  believed  when  the 
deed  was  executed  that  the  grantor  conveyed  his  whole  title  in  fee,  and 
the  intentions  of  the  parties  that  the  entire  use  and  interest  of  the 
grantor  should  pass,_is  as  clear  as  if  the  limitation  of  the  whole  use 
•had  been  valid  and  effectual.    This  intent  being  established  it  follows, 


Cy(^ 


Ch.  1)  MODE  OF  CONVEYANCE  245 

as  a  necessary  consequence,  that  the  sum  of  ilOO  consideration  was 
paid  and  received  as  an  equivalent  for  what  was  intended  and  supposed 
to  have  been  conveved.  that  is  to  say  for  an  estate  in  f eg.  The  express 
declaration  of  the  use  in  the  present  case,  instead  of  being  presump- 
tive evidence  that  the  grantor  did  not  intend  to  part  with  the  use  in  fee, 
is  conclusive  evidence  that  he  did  so  intend ;  and  the  extent  of  the 
express  declaration  is  as  much  the  measure  of  the  consideration  as  if 
the  whole  of  the  declared  use  had  been  valid.  The  complainant's  claim 
to  the  resulting  use,  or  reversion  of  the  land,  being  founded  solely  on  "^ 

tlie  assumption  that  the  grantor  never  was  paid  for  it,  must,  tlierefore. 
fail  because  the  assumption  is  disproved  bv  the  deed  itself.  > 

A  use  never  results  against  the  intent  of  tlie  parties.    "Where  theie 
is  any  circumstance  to  show  the  intent  of  the  parties  to  have  been  that 
the  use  should  not  result,  it  will  remain  in  the  persons  to  w^hom  the 
legal  estate  is  limited.^"    1  Cruise,  tit.  xi.  Use,  ch.  4,  §  41.    In  this  case 
there  are  at  least  two  such  circumstances.     They  have  already  been 
alluded  to  ;  first,  the  intent  expressly  declared  to  convey  the  land  in  fee   t     /\t^tj^rUji 
^\  PC  in  perpetuity  for  the  benefit  of  the  members  of  St.  George's  Lodge. 
C^  This  effectually  repels  the  idea  of  a  resulting  use.     The  two  intents  -'<*-'*-*•  •"r^-^-'^ 
-..  are  incompatible.     Secondly,  the  payment  of  the  purchase  money,  of  jj    ^XjlJUI'^ 
rv)  which  enough  has  been  already  said. 

If  it  be  said  that  the  express  declaration  is  a  presumptive  proof  that 
the  grantor  did  not  intend  that  the  grantees  of  the  legal  estate  should 
have  that  part  of  the  use  which  was  effectually  declared,  the  answer  is, 
that  the  express  declaration  is  proof  at  least  equally  strong  that  he  did 
not  mean  that  the  use  should  result  to  himself.  Conceding  then  that 
the  intention  of  the  parties  in  regard  to  this  residue  of  the  use  cannot 
be  carried  into  effect,  the  equity  which  governs  resulting  uses  settles 
the  question  between  them.  It  gives  the  residue  to  the  grantees  because 
the  grantor  has  had  the  money  for  it,  and  the  language  of  the  convey- 
ance is  sufficient  to  pass  it.  The  g^rantor  cannot  have  the  purchase 
money  and  the  land  also.     Payment  of  the,  purchase  money  for  the  -j^ 

entire  title,  vests  the  entire  use  in  the  grantees,  excepting  only  so  much 
of  it  as  may  be  effectually  declared  for  the  benefit  of  some  other  per- 
son. 

It  was  insisted  on  the  argument  that  where  an  estate  is  conveyed 
for  particular  purposes  or  on  particular  trusts  only,  which  by  accident 
or  otherwise  cannot  take  effect,  a  trust  will  result  to  the  original  owner 
or  his  heir;  and  that  the  present  case  falls  within  that  principle.  We 
were  referred  on  this  point  to  Cruise,  tit.  Trust,  ch.  1,  §  56.  But  on 
looking  at  the  cases  cited  by  Mr.  Cruise,  they  are  found  to  be  cases  not 
,  of  uses,  but  of  active  trusts ;  all  excepting  one  created  by  devise,  where 
of  course  no  pecuniary  consideration  was  paid,  and  the  land  therefore 
was  not  diverted  from  the  heir-at-law  on  the  failure  of  the  trust.  The 
case  in  which  there  was  a  conveyance  in  trust  has  no  resemblance  to 
the  case  now  in  hand.  That  the  rule  above  cited  from  Cruise  is  in- 
applicable to  the  present  case  appears  on  Sir  Edward  Coke's  author- 


246  DERIVATIVE  TITLES  (Part  2 

ity,  in  The  Queen  v.  Porter,  1  Rep.  24,  26,  that  upon  a  feoffment  made 
without  consideration  to  charitable  uses  void  by  statute,  the  feoffee 
should,  notwithstanding  the  declaration  of  such  uses,  be  seized  to  the 
feoffor  and  his  heirs;  but  that  if  the  feoffor  had  reserved  but  a  penny 
rent,  or  had  taken  a  penny  in  consideration  of  the  feoffment,  then,  al- 
though the  statute  makes  void  the  use  expressed,  yet  the  feoffees  shall 
be  seized  to  their  own  use  and  not  to  the  use  of  the  feoffor.  This  was 
said  in  the  argument  for  the  defendant  Porter;  and  Coke,  who  was 
solicitor  for  the  Queen,  in  a  note  at  the  end  of  the  case,  referring  by  a 
marginal  note  to  this  part  of  the  argument,  says:  "And  it  is  good 
policy  upon  every  such  feoffment  (to  charitable  uses)  to  reserve  a  small 
rent  to  the  feoffor  and  his  heirs,  or  to  express  some  such  consideration 
of  some  small  sum,  for  the  cause  before  rehearsed."  Thus  it  appears 
that  upon  a  feoffment  to  a  void  use,  upon  a  pecuniary  consideration. 
y^  however  small,  the  title  vests  m  the  feoff'ee  for  his  own  benefit.    The 

conveyance  in  the  present  case  was  by  lease  and  release,  which  oper- 
ated in  this  respect  like  a  feoffment,  and  vested  the  estate,  legal  and 
equitable,  in  the  releasees,  from  and  after  the  expiration  of  the  valid 
use. 

Whether  they  took  this  residue  of  the  estate  as  tenants  in  common 
or  as  joint  tenants  is  a  question  which  does  not  arise  in  this  case.  It 
has  been  assumed  that  the  use  expressed  in  favor  of  the  members  of 
St.  George's  Lodge,  not  specially  named,  was  not  valid  as  a  charitable 
use.  But  it  was  not  necessary  to  decide  that  question.  The  decision 
of  this  case  must  not  be  understood  as  settling  any  question  as  to  the 
title  to  the  money  in  controversy,  except  that  no  part  of  it  belongs  to 
the  complainants. 

Judges  Mason,  Morse,  Johnson  and  Gardiner  concurred  in  the 
foregoing  opinion. 

Willard  and  Taggart,  J  J,,  dissented. 

Decree  affirmed. *^° 

65  Cf.  JIcElroy  v.  McElroy,  113  Mass.  509  (1S7.3),  where  the  case,  as  stated  in 
the  syllabus,  was  as  follows:  A,  by  deed  of  warranty,  wifh  covemmts  to  the 
"grantee,  his  heirs  and  assiajns,"  and  in  consideration  of  one  dollar  paid  by 
B.  (his  brother),  "trustee  of"  Q.  ^another  brotner),  and  of  "the  love  an"cl  atfec- 


ta 
us 


tion"  he  liore  to  C,  conveyed  a  parcel  of  land  to  B.,  "it  being  my  intention"  " 
convey"  to  B.,  "in  trust  tor"  C.^"to  nave  ann  lo  noia  to  the  said  grantee,  h. 
heirs  and  assigns,  to  his  and  tlieir  use  and  liehoorTort^VHr.i;^    it  was  ht^Fcl  fHat 
there  was  a  resuitlflg  tl'hst  in  the  grantor  m  me  remainder  after  th(;  lite  estate 

im — " '    •" 


^^rxV 


Ch.  1)  MODE  OF  CONVEYANCE  .  247 

(B)   Uses  Raised  Independently  of  a  Common  Lazv  Conveyance 

THE  STATUTE  OF  ENROLMENTS 

Be  it  enacted  by  the  authority  of  this  present  Parliament,  That  from 
the  last  day  of  July,  which  shall  be  in  the  year  of  our  Lord  God  1536, 
no  manors,  lands,  tenements  or  other  hereditaments,  shall  pass,  alter 
or  change  from  one  to  another,  whereby  any  estate  of  inheritance^  or 
freehold  shall  be  made  or  take  effect  in  any  person  or  persons,  or  any 
use  thereof  to  be  made,  by  reason  only  of  any  bargain  and  sale  there- 
oTj  except  the  same  bargain  and  sale  be  made  by  writing  indented 
sealed,  and  inrolled  in  one  of  the  King's  courts  of  record  at  Westmin- 
ster^ or  else  within  the  same  county  or  counties  where  the  same  manors, 
lands  or  tenements,  so  bargained  and  sold,  lie  or  be,  before  the  Custos 
Rotulorum  and  two  justices  of  the  peace,  and  the  clerk  of  the  peace  of 
the  sarne  county  or  counties,  or  two  of  them  at  the  least,  whereof  the 
clerk  of  the  peace  to  be  one ;  and  the  same  enrolment  to  be  had  and 
made  within  six  months  next  after  the  date  of  the  same  writings  in- 
dented ;  the  same  Custos  Rotulorum,  or  justices  of  the  peace  and  clerk, 
taking  for  the  enrolment  of  every  such  writing  indented  before  them, 
where  the  land  comprised  in  the  same  writing  exceeds  not  the  yeaxly 
value  of  forty  shillings,  ii.  s.  that  is  to  say,  xij.  d.  to  the  justices,  and 
xij.  d.  to  the  clerk;  and  for  the  enrolment  of  every  such  writing  in- 
dented before  them,  wherein  the  land  comprised  exceeds  the  sum  of 
xl.  s.  in  the  yearly  value,  v.  s.  that  is  to  say,  ii.  s.  vi.  d.  to  the  said  jus- 
tices, and  ii.  s.  vi.  d.  to  the  said  clerk  for  the  enrolling  of  the  same; 
and  that  the  clerk  of  the  peace  for  the  time  being,  within  every  such 
county,  shall  sufficiently  enroll  and  ingross  in  parchment  the  same 
deeds  or  writings  indented  as  is  aforesaid ;  and  the  rolls  thereof  at  the 
end  of  every  year  shall  deliver  unto  the  said  Custos  Rotulorum  of  the 
same  county  for  the  time  being,  there  to  remain  in  the  custody  of  the 
said  Custos  Rotulorum,  for  the  time  being,  amongst  other  records  of 
every  of  the  same  counties  where  any  such  enrolment  shall  be  so 
made,  to  the  intent  that  every  party  that  hath  to  do  therewith,  mav_j:e- 
sortj.nd  see  the  effect  and  tenor  of  every  such  writing  so  enroU^d. 
"TLProvided  always,  That  this  act,  nor  any  thing  therein  contained, 
extend  to  any  manner  lands,  tenements,  or  hereditaments,  lying  or  be- 
ing within  any  city,  borough  or  town  corporate  within  this  realm, 
wherein  the  mayors,  recorders,  chamberlains,  bailiff's  or  other  officer 
or  officers  have  authority,  or  have  lawfully  used  to  enroll  any  evi- 
dences, deeds,  or  other  writings  within  their  precinct  or  limits;  any 
thing  in  this  act  contained  to  the  contrary  notwithstanding. 

St  27  Hen.  VHI,  c.  16,  (1536). 


248  .  DERIVATIVE  TITLES  (Part  2 

GREY  &  EDWARDS  CASE. 

(Court  of  King's  Bench,  1577.     4  Leon.  110.) 

I  In  an  attaint  by  Grey  against  Edwards  it  was  holden  by  Wray, 

.      Y^  V  Gaudy,  and  Jkoffries,  that  if  one  makes  a  deed,  and  that  by  these 
'■^1^     .  L'  words  (dedi)  conveyeth  lands  to  another,  wrthou^_aiiy_jwwxh_^f_bar- 
W*^      V  r        gaip  and  sale,  and  that  for  a  sum  of  money ;    if  tlie  deed  be  debito 
T       .-j^  mode  enrolled,  the  use^hall  x>ass  as  well  as  if  the  words  of_barggin 

and  s^Jj&Jiad  been  in  the  deed^  because  that  a  sum^  rnoney  was  paid 
for  tlie  Iand.«» 


LUTWTCH  V.  MITTON. 

(Court  of  Wards,  1620.    Cro.  Jac.  604.) 

It  was  resolved  by  the  two  Chief  Justices,  Montague  and  Hobart, 
and  by  TanfiEld,  Chief  Baron,  that  upon  a  deed  of  bargain  and  sale 
for  years  of  lands  whereof  he  himself  is  in  possession,  and  the  bar- 
gainee never  entered;    if  afterwards  the  bargainors  make  a  grant  of 
the  reversion  (reciting  this  lease)  expectant  upon  it  to  diverse  uses 
that  it  is  a  good  conveyance  of  the  reversion ;    and  the  estate  was 
executed  and  vested  in  the  lessee  for  years  by  the  statute;   and  was 
divided  from  the  reversion,  and  not  like  to  a  lease  for  years  at  the 
(    jL-^ti,'      common  law;    for  in  that  case  there  is  not  any  apparent  lessee  un- 
til he  enters :    but  here,  by  operation  of  the  statute,  it  absolutely  and 
M-.4^!LCk    actually  vests  the  estate  in  him,  as  the  use,  but  not  to  have  trespass 
^.  without. _entry  and  actual  possession:   wherefore  they  would  not  per- 

"^  mit  this  point  to  be  further  argued. 


JACKSON  ex  dem.  HUDSON  v.  ALEXANDER. 

(Supreme  Court  of  New  York,  ISOS.     3  Johns.  484,  3  Am.  Dec.  517.) 

This  was  an  ^ction  of  eiectment.  for  lot  No.  68,  in  the  town  of  Mil- 
ton, in  the  county  of  Cayuga.  The  cause  was  tried  before  Mr.  Jus- 
tice Spencer,  at  the  Cayuga  circuit,  on  the  1st  July,  1808.  On  tlie 
trial,  the  plaintiff  gave  in.evldence  an  exemplification  of  a  patent,  dated 
the  8th  July,  1790,  grantmg  the  lot  in  question  to  Joseph  Brown,  for 
his  military  services,  and  a  writmg  executed  by  Brown,  in  the  f ollow- 
ing-  words : 


"Fgr  value,  received  .of  Daniel  Hudson  &  Co.,  I  hereby  make  ovgr 
and  grap't  for  myself.  heirs7  ana  executors,  unto  the  tJUJd  Daniel  Hud- 


•8  Taylor  v.  Vale,  Cro.  Eliz.  166  (1589),  ace. 


Ch.  1)  MODE   OF   CONVEYANCE  249 

son  &  Co.,  his  heirs  and  assigns,  my  right  and  claim  on  the  public  jor 
66u  acres  of  "land.  "  Witness  my  hand  and  seal,  tli'is  7th  day  of  May, 
1784. 

"In  presence  of  •        Joseph  Brown.     [L.  S.] 

"Solomon  Coures. 
"John  Dolson." 

A  verdict  was  taken  for  the  plaintiff,  subject  to  the  opinion  of  the 
court,  on  a  case  containing  the  above  facts ;  and  it  was  agreed,  that 
if  the  court  should  be  of  opinion,  that  the  instrument  in  writing  .from 
Brown  to  Hudson,  one  of  the  lessors  of  the  plamtiff,  was  a  sufficient 
conveyance  of  the  premises  in  question,  then  judgment  was  to  be  en- 
tered  for  the  plgiintiff ;  otherwise,  the  verdict  was  to  be  set  aside,  and 
a  nonsuit  entered. 

The  cause  was  submitted  to  the  court  without  argument. 

Thompson,  J.  This  case  has  been  submitted  without  argument,  and 
the  question  presented  for  our  decision  is,  u^ether  the  instruipent  in  "^ 
writing  given  by  To_seph  Brown  to  Daniel  Hudson,  be  sufficient  to  con- 
vey the  title  to  the  premises  in  question.  The  want  of  any  considera- 
tibn  either  expressed  on  the  face  of  the  instrument,  or  proved  at  the 
trial,  is  the  principal  objection  to  its  operation.  All  deeds  by  which 
land  may  be  conveyed^  d_erive  their  effect  from  the  common  law,  ^r  ^ 

from  the  statute  of  uses.  It  cannot  be  pretended  that  this  instrument 
can  take  effect  as  a  common  law  conveyance,  either  original  or  deriv- 
ative. 4  Cruise,  on  Real  Property,  100.  If  it  is  to  have  any  opera- 
tion, it  must  be  as  a  bargain  and  sale,  by  virtue  of  the  statute  of  uses. 
That  statute  has  given  rise  to  several  new  forms  of  conveyance, 
which  operate  contrary  to  the  rules  of  the  common  law.  It  is  a  gen- 
eral rule  of  the  common  law,  that  it  is  not  absolutely  necessary,  that 
a  consideration  should  be  expressed  in  a  deed.  The  thoiight  and  dp- 
liberation,  which  was  supposed  to  attend  the  making  and  executing  of 
deeds,  rendered  them  valid,  without  any  consideration  expressed. 
Soon,  however,  after  the  chancellors  had  assumed  a  jurisdiction  m 
cases  of  uses,  they  adopted  the  maxim  of  the  civil  law,  "ex  nudo  pacto 
non  oritur  actio,"  and  in  conformity  to  it,  they  determined  not  to  lend 
their  aid  |to  carry  any  deed  into  execution,  unless  it  was  supported  by 
some. consideration.     4  Cruise,  24.     Hence  it  has  becor|ie  a  universal  -JL.    ^ 

rule.  _that  a  use  cannot  be  raised  without  a  consideration;   and  a, bar-  ^ 


ir 


gain  and  sale,  being  merely  a  conveyance  of  a  use,  it  cannot  be_eff,ec- 
tuai  without  a  consideration,  which  must  be  valuable^  for  the  very 
name  of  the  conveyance  imports  a  quid  pro  quo.  1  Co.  176,  a;  San- 
ders on  Uses,  340;  2  Inst.  671;  4  Cruise,  173-8.  That  a  considera- 
tion is  requisite  to  raise  a  use,  is  a  principle  recognized  by  almost  every 
elementary  writer  on  the  subject;  and  has  been  repeatedly  sanctioned 
by  adjudged  cases.  The  expression  of  Sir  Wm.  Blackstone,  (2  Comm. 
296,)  may  be  too  broad  when  he  says,  that  a  deed  or  grant,  made  with- 
out any  consideration,  is  of  no  effect,  and  is  to  be  construed  to  enure, 
or  be  effectual  only,  to  the  use  of  the  grantor;    yet  Professor  Chris- 


t 


^ 


250 


DERIVATIVE  TITLES 


(Part  2 


tian,  in  his  note  on  this  passage,  admits  this  position  to  be  true  with 
respect  to  a  bargain  and  sale.  Baron  Corny n,  also,  says,  that  n  har.n-ain 
and  sale  of  land,  whereby  a  n.^e.  arises^  niighf  tn  he  made  upon.^ 
valuable  consideration,  otherwise  no  use_  arises ;  and  the  considera- 
tion must  not  be  too  general,  but  must  import  a  quid  pro  quo.  2 
Com.  Dig.  6;  3  Com.  Dig.  275-7.  We  find  the  same  principle  rec- 
ognized by  the  late  editor  of  Bacon's  Abridgment,  (1  Bac.  Abr.  469.) 
Shep.  Touch.  220.  It  is  there  said,  that  by  a  bargain  and  sale  of  iand 
no  use  arises,  unless  there  be  a  consideration  of  money ;  for  selling, 
ex  vi  termini,  supposes  the  transferring  a  right  of  something,  for  mon- 
ey, and  if  there  be  no  such  consideration,  it  may  be  an  exchange,  3 
Qovenant  to  stand  seise37a  grant,  &c.y  but  can  be  no  sale  within  the_stat- 
ute.  The  judgnient  of  the  court,  in  Mildmay's  Case,  1  Coke,  176,  was 
governed  by  the  same  principles ;  and  in  Doe  ex  dem.  Milburn  v. 
Salkeld,  Willes,  675,  Lord  Ch.  J.  Willes,  in  delivering  the  opinion 
of  the  court,  upon  the  nature  and  operation  of  a  deed,  set  forth  in 
the  case,  observes,  it  cannot  be  considered  as  a  bargain  and  sale,  be- 
cause there  was  no  money  consideration.  ~~ 
In  the  case  of  Ward  v.  Lambert,  Cro.  Eliz.  394,  the  deed  recited, 
"that  whereas  I.  S.  was  bound  in  a  recognizance,  and  other  bonds  for 
him,  he,  for  divers  good  considerations,  bargained  and  sold  the  land 
to  him  and  his  heir^;  and  this~was  held  not  to  be  a  good  bargain 
and  sale.  The  court  said,  that  in  every  bargain  and  sale  there  ought  to 
be  a  quid  pro  quo:  but  thevendor  there  had  nothmg  for  his  land^  and 
therefore,  it  was  void.  If  a  man  give  land,  or  bargain,  and  sell  land 
to  his  son,  no  use  arises  thereby.  If,  then,  a  valuable  consideration 
be  necessary  to  raise  a  use,  the  next  question  ^vill  be.  whether  the  in- 
strument before  us,  upon  the  fax:e  ot  it,  miports  the  consideration  re- 
quired in  a  bargain  and  sale,  under  the  statute  of  uses.  If  it  does, 
it  must  arise  either  from  the  internal  torce  of  the  words  "for  value 
received,"  or  by  virtue  of  the  seal.  A  valuable  consideratign  i';  defined 
in  the  books,  to  mean  money,  or  any  other  thing  that  bears  a  knqwn 
valuer  4  Cruise,  24.  This  court,  in  the  case  of  Lansing  v.  AIcKillip, 
3  Caines,  286,  considered  the  words,  for  value  received,  of  little  force 
and  importance  of  themselves,  towards  making  out  a  consideration. 
Independently  of  that  decision,  however,  I  cannot  discover  more  effi- 
cacy in  these  words  than  in  many  others  which  have  been  used  in  in- 
struments, that  have  been  adjudged  inoperative  as  bargains  and  sales. 
All  the  cases  I  have  cited  to  show  the  necessity  of  a  consideration. 
plainly  inHi(^ate,  that  if  it  is  to  be  inferred  from  the  face  of  the  deed, 
i_t^  ouoht  to  be  so  expressed  as  necessarily  to  import  value.  It  rnust 
not,  in  the  language^ot  Baron  Comyn,  be  too  general.  It  seems  to 
me,  tTiaFas  much  rnay  be  inferred  from  "the  word  consideration  as 
the  word  value.  And  it  has  repeatedly  been  adjudged,  that  an  ac- 
knowledgment of  the  receipt  of  a  consideration  generally  was  not 
sufficient.  Although  this  may  have  the'  semblance  of  a  technical  nicety, 
incompatible  with  the  broad  principles  of  justice,  yet  the  rule  appears 


Ch.  1)  MODE  OF  CONVEYANCE  251 

to  me  to  be  too  firmly  established  to  be  overturned.  Many  of  the  com- 
mon law  principles,  applicable  to  other  contracts,  cannot  be  applied  to 
bargains  and  sales  under  the  statute  of  uses. 

In  Mildmay's  Case,  and  also  that  of  Ward  v.  Lambert,  before  refer- 
red to,  the  words^  divers  good  considerations,  were  considered  insuffi- 
cient to  raise  a  use.  Leing-  but  general  parlance,  implying  nothing,  unless 
express;  considerations  were  shown ;  for  otherwise  none  would  be 
intended.  So  in  Fisher  v.  Smith,  5  Vin.  Abr.  406,  note,  the  court  were 
clear,  that  if^one  pleads  a  bargain  and  sale,  in  which  no  consideration 
9f  monev  is  expressed,  then  he  nnorht  to  supply  it  by  an  avermenLthat 
it  was  for  monej/ :  and  that  the  words,  for  divers  good  considerations, 
shall  not  be  intended  for  money,  without  an  averment ;  but  if  the  deed 
expresses,  for  a  competent  sum  of  money,  it  is  sufficient,  without 
showing  the  certainty  ot  the  sum ;  and  none  shall  say  that  no  money 
was  paid;  for  against  this  express  mention  in  the  deed,  no  averment 
that  no  money  was  paid  shall  be  admitted.  An  acknowledgment  in  the 
deed  of  the  receipt  of  monev.  ex  vi  termini,  imij-orts  value,  and  the 
amount  of  the  consideration  is  immaterial.  It  has  been  repeatedly 
ruled  that,  if  in  pleading  a  bargain  and  sale,  no  valuable  consideration 
is  shown,  it  will  be  ill  on  demurrer.  In  many  cases  the  verdict  has 
been  deemed  to  cure  this  defect,  which  must  have  been  on  the  ground, 
that  after  verdict,  the  consideration  is  presumed  to  have  been  proved 
on  the  trial.  1  Lord  Raym.  Ill  ;  1  Wils.  91 ;  2  H.  Black.  261.  Froni  y 
njl  fhp;  rnses  referred  to.  it  is  evident  that  the  court  did  not  consider  tlie  jAjtAjP  >U^ 
seaL  as  yirtuallv  importing  the  requisite  consideration;    for  the  instrii-  | 

nients.  although  under  seal,  were  deemed  inoperative,  as  bargains  and  Pfr^ti^  hJLi 
sales.  It  would  have  been  competent  for  the  plaintiff,  in  the  present 
case,  to  have  proved  a  consideration  paid,  _(5  Yin.  507,)  which,  in  my 
opinion,  vvoukT  liave'^Tnade  the  deecl  eTifectual  to  transfer  the  title ; 
the  word  grant  being  sufficient  to  pass  the  land  by  way  of  use,  (2  Mod. 
253.)  Under  this  view  of  the  case,  I  should  be  inclined  to  grant  a  new 
trial,  to  give  the  plaintiff  an  opportunity  of  producing  this  proof,  if  in 
his  power,  without  the  expense  of  a  new  action ;  but  according  to  the 
stipulation  in  the  case,  a  judgment  of  nonsuit,  in  my  n])ini()n^  nnglit 
to  be  entered. 

Kent,  Ch.  J.    I  am  of  opinion  that  the  deed  from  Brown  to  Hudson 
was  sufficient  to  convey  his  interest  in  the  premises. 

I  agree  that  the  deed,  if  it  operates  at  all,  must  operate  as  a  bargain 
and  sale  under  the  statute  of  uses. 

At  the  common  law,  a  feoffment  or  lease  was  valid,  without  any 
consideration,  in  consequence  of  the  fealty  or  homage  which  vvas  inci- 
dent to  every  such  conveyance.  The  law  raised  a  consideration  out  of 
the  tenure  itself.  But  after  the_statute  of  Quia  Emptores.  (18  Ed.  I,)  \''^ 
Perkins  says,  that  a  consideration  became  requisite  eveJi  to  the  validity  '  •  • 
of  a  feoffment,  as  none  could  be  implied,  since,  according  to  tlie  statute 
no  _f eudal  duty  or  service  resulted  to  the  immediate  feoffor.  (Perkins, 
sects.  528-537.)     The  general,  and  the  better  opinion  is,  that  the  no- 


Ccn-voX^^/u, 


252  DERIVATIVE  TITLES  (Part  U 

tion  of  a  consideration  first  came  from  the  court  of  equity,  where  it 
was  held  necessary  to  raise  a  use ;  and  when  conveyances  to  uses  were 
introduced,  the  courts  of  law  adopted  the  <;nmp  if1pa..p  and  held  that  a. 
consideration  was  requisite  in  a  deed  of  hargajn  and  sale.  This 
new  principle  in  the  doctrine  of  assurances  by  deed,  met,  at  first, 
with  a  very  strong  resistance  from  the  ablest  lawyers  of  the  age.  Plow- 
den,  in  his  argument  in  the  case  of  Sharington  v.  Stroffen,  1  Plowden, 
308,  309,  which  arose  upon  a  deed  under  the  statute  of  uses,  contended, 
with  great  force  of  reason  and  authority,  that  a  deed,  which  was  a 
solemn  and  deliberate  act  of  the  mind,  did  of  itself  import  a  consid- 
eration;  that  the  will  of  the  grantor  was  a  sufficient  consideration, 
and  it  neyer  could  be  called  a  nudum  pactum.  Lord  Bacon,  in 
This  reading  on  the  statute  of  uses,  takes  notice  of  this  argument  of 
Plowden,  and  gives  it  the  weight  of  his  sanction.  "I  would  have  one 
ase  showed/'  snid  he,  "\iY  men  learned  in  the  law,  wIiptp"  there  15^-  a 


deed,  ^nd  yet  there  needs  a  rnrr^ideratinn      As  for  parole,  the  law  ad- 

Ijudgeth  it  too  light  to  give  an  action  without  consideration ;  but  a  deed, 

/even  in  law,  imports  a  consideration,  because  of  the  deliberation  and 

I  ceremony  in  the  confection  of  it;    and,  therefore,  in  8  Reginais,  it  is 

(solemnly  argued  that  a  deed  should  raise  a  use  without  any  other  con- 
sideration." Bacon's  Works,  v.  4,  p.  167.  But  notwithstanding  this 
strenuous  opposition,  the  rule  from  chancery  prevailed,  and  it  has_been 
long'  settled,  that  a  consideration,  expressed  or  proved,  was  necessary 
to  give  effect  to  ajeed  of  bargain  and  sale.  I  am  not  going  to  attempt 
to  surmount  the  series  of  cases  on  this  subject,  though  I  confess  my- 
self a  convert  to  the  argument  of  Plowden.  I  admit  the  rule  that  a 
consideration  is  necessary  to  a  conveyance  to  uses ;  but  I  think  that 
here  is  evidence  of  a  consideration,  appearing  on  the  face  of  the  deed 
before  us,  sufficient  to  conclude  the  grantor,  and  to  give  effect  to  it 
as  a  bargain  and  sale. 

The  rule  requiring  a  consideration  to  raise  a  use,  has  become  merely 
nomin;al.  jmd  a_matter  of  form ;  for  if  a  sum  of  money  be  mentioned, 
it  is  never  an  inquiry  whether  it  was  actually  paid,  and  the  smallest 
sum  possible  is  sufficient:  nay,  it  has  been  solemnly  adjudged,  that  a 
__£epper-corn  was  sufficient  to  raise  a  use.  2  Vent.  35.  Since,  then, 
the  efficacy  of  the  rule  is  so  completely  gone,  we  ought,  in  support  of 
deeds,  to  construe  the  cases  which  have  modified  the  rule,  with  the  ut- 
most liberality. 

The  deed  in  the  present  case  states,  that  "for  value  received  of  the 
grantee,  he  doth  grant,"  &c.,  and  can  it  now  be  permitted  to  the 
grantor  to  say  there  was  no  value  received?  Value  received  is  equiv- 
alent to  saving^  money  was  received,  or  a  chattel  was  received.  It  is 
an  express  averment,  ex  vi  termini,  of  a  quid  pro  quo.  In  Fisher  v. 
Smith,  Moore,  569,  there  was  a  bargain  and  sale  for  divers  consid- 
erations, and  it  was  held  not  to  be  enough,  without  an  averment,  that 
it  was  for  money.  "But  if  the  deed  express  for  a  competent  sum  of 
money,  this  is  sufficient  without  mentioning  the  certainty  of  the  sum. 


Ch.  1)  MODE  OF  CONVEYANCE  253 

and  against  this  express  mention  in  the  deed,  no  averment  or  evidence 
shall  be  admitted  to  say  that  no  money  was  paid."  All  the  cases  that 
I  have  examined,  which  say  that  a  general  consideration  is  not  suffi- 
cient, are  cases  in  which  the  words  in  the  deed  were  for  divers  good 
considerations.  I.  have  not  met  with  any  case  which  goes  so  far  as 
to  say,  that  an  averment  in  the  deed  of  value  received  by  the  grantor, 
\yas  not  sufecient  It  is  said,  in  2  Roll.  Abr.  786,  pi.  n,  that  "an  aver- 
ment that  a  bargain  and  sale  was  in  consideration  of  money  or  other 
valuable  consideration  given,  was  sufficient."  If  the  words  had  been 
for  money  received  by  the  grantor,  then  the  deed  would  have  fallen 
exactly  within  the  decision  in  Moore,  and  would  have  been  good,  ac- 
cording to  the  admission  in  all  the  books.  I  cannot  perceive  any  es- 
sential difference  between  the  two  averments ;  value  received  does,  in 
judpnent  of  law,  implv  monev.  or  its  equivalent.  The  grantor  must 
be  estopped  by  this  express  averment  in  his  deed.  He  admits  not  only 
a  value,  but  a  value  received  from  the  grantee ;  and  if  we  will  not 
intend  this  value  to  be  something  valuable,  or  equal  to  a  competent 
sum  of  money,  we  seem  not  to  construe  charters  as  they  did  in  the  case 
of  Fisher  v.  Smith,  and  as  the  law  axiom  requires  them  to  be  exam- 
ined, benignly,  and  in  support  of  the  substance.  The  statute  of  9  and 
10  Wm.  Ill,  c.  17,  regards  those  words  of  so  much  import,  that  if 
a  bill  contains  them,  the  holder  is  then  entitled  to  recover  interest  and 
damages  against  the  drawer  and  endorser;  and  in  Cramlington  v.  Ev- 
ans, 1  Show.  4,  Carth.  5,  Lord  Holt  laid  great  stress  on  these  words. 
"If  the  drawer^"  he  says,  "mention  for  ynlnp  rprpivpH  thpn  hp  Jg 
chargeable  at  common  law ;  but  if  no  such  mention  is  ma^.  thpn  ymi 
must  come  upon  the  custom  of  merchants  only."  I  mention  these  au- 
thorities only  to  show  that  these  words  mean  something ;  and  that,  in 
certain  cases,  at  least,  the  law  has  attached  the  meaning  of  real  ac- 
tual value  to  the  averment  of  value  received,  and  that  in  those  cases, 
it  has  been  considered  as  equivalent  to  saying  for  money  received. 
The  law  from  the  beginning  has  been  very  indulgent  in  helping  out 
deeds,  on  the  ground  of  consideration.  If  no  consideration  be  ex- 
pressed, one  may  be  averred  in  pleading,  or  proved  upon  the  trial. 
Mildmay's  Case,  1  Co.  175  ;  Fisher  v.  Smith,  Moore,  569.  In  pleading 
a  bargain  and  sale,  in  which  no  consideration  is  expressed,  it  was 
held,  in  Smith  v.  Lane,  Moore,  504,  that  the  bargainee  need  not  aver 
payment  of  money,  because  it  was  implied.  This  was  after^vards  held 
otherwise;  but  it  has  been  lately  held  by  the  Court  of  C.  B.  (2  H. 
Black.  259)  that  this  averment  was  but  matter  of  form,  and  the  omis- 
sion of  it  cured,  on  a  general  demurrer.  This  last  decision  seems  to 
have  almost  done  away  even  the  form  of  the  old  rule,  for  it  can  hardly 
be  necessary  to  prove  upon  trial  under  the  general  issue,  a  fact  which 
is  matter  of  form,  and  not  of  substance.  A  plaintiff  is  bound  to  prove 
onlv  what  would  be  considered  as  material  averments,  and  matters 
which  go  to  the  substance  of  the  action. 


254  DERIVATIVE  TITLES  (Part  2 

But  I  place  mv  opinion  on  the  ground  that  the  deed  contains  a  suffi- 
cient averment  of  a  consideration,  to  estop  the  grantor,  and  to  give  the 
deed  operation  under  the  statute  of  uses.,  I  am  not  apprized  of  any 
case  which  is  an  authority  against  this  conclusion.  In  Lansing  v.  Mc- 
Killip,  3  Caines,  286,  two  of  the  judges  intimated  that  value  received 
did  not  supersede  the  necessity  of  averring  and  proving  a  considera- 
tion in  a  special  agreement;  but  another  of  the  judges  went  largely 
\  into  the  support  of  a  contrary  opinion.     The  case,  however,  was  not 

decided  upon  that  ground,  but  upon  another,  viz.  that  where  the  plain-, 
tiff  alleges  two  good  considerations  in  his  declaration,  he  must  prove 
them  as  laid. 

The  next  point  in  the  case  is,  whether  the  words,  "make  over  and 
g^rant,"  be  sufficient  to  convey  Brown's  interest  in  the  land.  Thfij^ord 
•A'  graiitjias  been  held  sufficient  to  pass  land  by  way  of  use,    2  Mod.  253  ; 

TTRaym.  48  Though  in  its  original  meaning,  the  word  ai)plied  only 
to  a  conveyance  of  incorporeal  hereditaments,  which  could  not  pass 
by  livery  of  seisin,  yet  in  conveyances  under  the  statute  of  uses,  it  is 
sufficient,  if  the  g^ranting  words  are  competent  to  raise  a  use  ^  for  the 
statute  then  performs  the  task  of  the  ancient  livery  of  seisin. 

Aly  opinion  on  both  points,  accordingly,  is,  that  the  plaintiff  is  en- 
titled to  judgment. 

Van  Ness,  J.,  and  Y.\TEs,  J-,  were  of  the  same  opinion. 

Judgment  for  the  plaintiff.*^ ^ 


^K 


1 


6  7  The  opinion  of  Spencer,  J.,  to  tbe  same  effect  as  the  opinion  of  Thompson, 
J.,  is  omitted. 

In  a  deed  the  consideration  was  recited  as  "four  thousand  three  hundred 
dollars."  with  a  line  drawn  throngh  the  "four  thousand  three  hundred."  .No 
consideration  having  been  proved,  the  question  was  whether  the  deed  could 
operate  as  one  of  bargain  and  sale.  Catliu  Coal  Co.  v.  Lloyd,  180  111.  398,  54 
K.  E.  214.  72  .Am.  St.  Rep.  216  (IbOD). 

"AVheii  tiip  rotiv^ideration  in  a  covenant  to  stand  seised  to  uses,  or  in  a  bar- 
gain and  sale,  isguod^and  the  person  certain,  there  that  perscii  may  make  an 
a vernient  that  TlTe  consideration  was  paid,  an d  according  to  the  truth  of  TTi e 
case ;  but  when  the  person  is  uncei-tain  and  the  coiisider.ition  ffpiipr.-il  there 
no,averiiiPiif  cnn  li^  f--^l^T»  bv  anv  nersom  In  the  first  case  tlie  averment  by 
the  particular  person  is  but  rechicing  the  general  consideration  to  some  cer- 
tainty, and  making  out  that  in  particular,  in  favour  of  the  i)erson  who  was 
before  included  in  the  general  words,  which  is  very  reasonable,  in  case  a  good 
consideration  were  bona  fide  paid  by  him  ;  but  in  the  latter  case  the  intent 
of  the  covenantor  was  void  ab  initio,  for  it  appearing  that  he  designed  nobody 
in  particular,  for  the  benefit  of  the  use  he  would  raise,  no  person  in  certain 
could  aver  any  particular  consideration  why  he  should  have  the  use.  because 
it  plainly  appears  by  the  deed  he  did  not  design  him  for  the  use  an.v  more  than 
any  other  person,  and  the  law  will  not  give  i"_  psp  tn  ^nvbntiy  contrary  to  the 
ii],teiit  of  the  party  mentioned  in  the  seUlement,"  etc.  Gilbert's  Uses  (Sugdeu's 
Edl)  4rJ.     See  Mildmay's  Case,  1  Oo"  i'<S  (loSi!). 


Ch.  1)  MODE  OF   CONVEYANCE  255 

ROE  ex  dem.  WILKINSON  v.  TRANMER. 
(Court  of  Common  Pleas,  1757.     2  Wils.  75.) 

Upon  the  trial  of  this  cause  it  appeared *in  evidence,  that  Thomas 
Kirby,  being  seised  in  fee  of  the  lands  in  question,  made  and  executed 
certain  deeds  of  lease  and  release.  The  lease,  dated  November  9, 
1733,  made  between  the  said  Thomas  Kirby  of  the  one  part,  and  Chris- 
topher Kirby  his  brother  of  the  other  part,  whereby  it  is  witnessed 
thaLlbe  said  Thomas  Kirby.  in  consideration  of  5s.,  did  grant,  bar- 
gain, and  sell  to  the  said  C.  Kirby.  his  executors,  administrators,  and 
assigns,  the  lands  in  question ;  to  have  and  to  hold  the  same  unto_the 
said  C.  Kirby.  his  executors,  administrators,  and  assigns,  from  the  day 
before  the  date  thereof  for  the  term  of  one  year  under  a  pepper-corn 
rent,  to  the  intent  that  by  virtue  of  these  presents,  and  by  force  of  the 
statute  for  transferring  uses  into  possession,  he  the  said  Christopher 
may  be  in  the  actual  possession  of  all  the  premises,  and  be  enabled  to 
take  and  accept  of  a  grant,  and  release  of  the  reversion  and  inherit- 
ance thereof  to  them  and  their  heirs,  to,  for,  and  upon  such  uses, 
i ntents,  and  purpo'^t;"^,  ns  in  nnd  l^y  the  said  grant  and  release  shall  be 
directed  or_declared._  In  witness,  ^c,  executed  by  Thomas  Kirby. 

The  release,  dated  November  10,  1733,  made  between  Thomas  Kirby 
of  the  one  part,  and  C.  Kirby  his  broth.er  of  the  other  part,  witnesseth, 
that  for  the  natural  love  he  beareth  toward  his  said  brother,  and  for 
and  in  consideration  of  £100.  to  the  said  Thomas  Kirby.  paid  by  the  said 
C.  Kirby.  he  the  said  Thomas  Kirby  hath  granted,  released,  and  con- 
firmed, and  by  these  presents,  doth  grant,  release,  and  confirm  unto  the 
said  C.  Kirby.  in  his  actual  possession  thereof  now  being,  by  virtue  of_a 
bargain  and  sale  for  one  whole  year  to  him  thereof  made  by  the  said 
I'Fiomas  ivirby,  by  indenture  dated  the  day  next  before  the  day  of 
the  date  hereof,  and  by  force  of  the  statute  made  for  transferring  of 
uses  into  possession,  after  the  death  of  the  said  Thomas  Kirby,  all  that 
one  close,  &c.  (the  premises  without  any  words  of  limitation  to  the  re- 
leasee) ;  to  have  and  to  hold  the  said  premises  unto  the  said  C.  Kirby 
and  the  heirs  of  his  body  lawfully  begotten,  and  after  their  decease  to 
John  WilRinson.  eldest  son  of  my  well-beloved  uncle  John  Wilkinson 
of  North  Daltori-Jn  the  county  of  York,  gentleman,  to  him  and  his 
heir'^  nnd  nq<;ig^n<;,  anrl  tn  the  Only  proper  use  and  behoof  of  liini  the 
said  John  Wilkinson  the  Younger,  his  executors,  administrators  or  .as- 
signs forever,  he  the  said  John  Wilkinson  the  Younger  paying  or  caus- 
ing  to  be  paid  to  the  child  or  children  of  my  well-beloved  brother 
Stephen  Kirby  the  sum  of  £200. ;  and  for  want  of  such  child  or  ch il- 
dren,  then  to  the  child  or  children  of  my  well-beloved  sister  lane  "Kir- 
b^  and  for  want  of  such  issue,  then  to-  the  younger  children  of  my 
well-beloved  uncle,  John  Wilkinson,  of  North  Dalton  aforesaid ;  and 
for  want  of  such  younger  children,  then  the  said  estate  above  men- 
tioned to  be  free  from  the  payment  of  tTie  above-named  sum  oi  ±200. 


256 


DERIVATIVE   TITLES 


(Part  2 


^ 


Then  the  releasor  covenants  that  he  is  lawfully  seised  in  fee,  and  that 
he  hath  good  right  and  full  power  to  convey  the  premises  to  the  said 
C.  Kirb^^hd  Uso  that  it  may  and  shall  be  lawful  to  and  for  the 
said  C  Kirby,  or  the  said  John  Wilkinson  the  Younger,  from  and 
after  the  death  of  him  the  said  Thomas  Kirby,  peaceably  and  quietly 
to  have,  hold,  use,  occupy,  possess,  and  enjoy  the  said  messuage,  lands, 
and  premises,  with  the  appurtenances,  not  only  without  the  lawful  let, 
suit,  &c.  of  him  the  said  Thomas,  but  all  others  claiming  underjijip, 
&c.  free  from  all  incumbrances.  •  Then  it  is  covenanted  by  all  the 
parties,  that  all  fing^and  recoveries,  and  deeds  of  the  premises,  levied, 
suffered,  or  executed  by  the  parties  or  any  of  them,  or  by  any  oth- 
er persons,  shall  be  and  enure  to  the  use  of  the  said  C.  Kirby  and, his 
heirs  of  his  body  lawfully  begotten ;  and  for  want  of  sucli^-4^sue. 
then  to  the  us^  nf  the  ■«;aid  Tohn  Wilkinson  junior,  his  heirs  and^as- 
sjgns  for  ever,  according  to  the  true  intent  of  these  presents.  In 
witness,  &c.  executed  by  Thomas  Kirby. 

It  further  appeared  in  evidence,  that  C.  Kirby  on  the  10th  of  Novem- 
ber 1733,  paid  to  the  said  Thomas  Kirby  i20.  in  moncv,  and  gave  hjm 
his  note  for  £80.  payable  to  the  said  Thomas  Kirby,  wlio  signed__a  re- 
ceipt  on  the  backside  of  the  said  djppd  of  release  in  these  words ;  viz. 
Received  the  day  and  year  within  written  of  the  within  named  C. 
Kirby  the  sum  of  one  hundred  pounds,  being  the  full  consideration- 
money  within  mentioned  to  be  paid,  t"  me-  I  say,  received  by  me, 
Thomas  Kirby.    Witness  M.  J.  S.  T. 

It  further  appeared  in  evidence,  that  C.  Kirby  died  without  issue  in 
1740,  and  that  John  Wilkinson  the  lessor  of  the  plaintiff  is  the  same 
John  Wilkinson  named  in  the  deed  of  release ;  but  it  did  not  appear 
that  the  said  John  Wilkinson  had  notice  of  the  said  deeds  of  lease 
and  release  until  a  short  time  before  this  ejectment  was  brought. 

This  being  the  case  for  the  consideration  of  the  Court,  the  general 
question  is,  wliether  the  lessor  of  the  plaintiff  has  a  title  to  recover 
upon  the  lease  an*^  rp1pa<;p  ?  ® ^     *     *     * 

WiLLEs,  C.  J.  It  is  admitted  and  agreed  on  all  hands  that  this  deed 
is  void  as  a  release,  because  it  is  a  grant  of  a  freehold  to  commence 
in  futuro;  and  therefore  the  only  question  is,  wjiether  it  shall  take 
effect  as  a  covenant  to  stand  seised  to  uses?  and  we  are  all  of  opinion 
tliat  it  shall  fmv  Brother  Bathurst.  not  being  here,  authorized  me 
to  say  he  is  of  the  same  opinion). 

]\Iany  cases  have  been  cited  on  both  sides,  some  of  which  are  very 
inconsistent  with  one  another,  and  to  mention  them  all  would  rather 
tend  to  puzzle  and  confound,  than  to  illustrate  the  matter  in  question; 
and  therefore  I  shall  only  take  notice  of  those  things  we  think  most 
material,  and  of  some  few  cases  nearest  in  point  for  our  judgment. 

It  appears  from  the  cases  upon  this  head,  in  general,  that  the  judges 
have  been  astuti  to  carry  the  intent  of  the  parties  into  execution,  and  to 


68  A  summary  of  the  arguments  of  counsel  given  in  Wilson's  report  is  liere 
omitted. 


Ch.  1)  MODE  OF  CONVEYANCE  257 

give  the  most  liberal  and  benign  construction  to  deeds  ut  res  magis 
valeat  quam  pereat.  I  rely  much  upon  Sheppard's  Touchstone  of  Com- 
mon Assurances,  82,  83,  (which  is  a  most  excellent  book,)  where  he 
says,  when  the  intent  is  apparent  to  pass  the  land  one  way  or  another, 
there  it  may  be  good  either  way. 

By  the  word  intent  is  not  meant  the  intent  of  the  parties  to  pass  the  , 

laiTcl  bv  this  or  tEat  particular  kind  of  deed,  or  by  any  particular  mode  *Uvjla*.>».4^ 
or  form  of  conveyance,  but  an  intent  that  the  land  shall  pass  at  all       ^  1^ 

events  one  way  or  other j  ^ ^^^^Xjla^ 

Lord  Hobart,  (who  was  a  very  great  man,)  in  his  Reports,  fo.  277, 
says,  "I  exceedingly  commend  the  Judges  that  are  curious  and  almost 
subtil,  astuti,  to  invent  reason  and  means  to  make  acts  according  to 
the  just  intent  of  the  parties,  and  to  avoid  wrong  and  injury,  which  by 
rigid  rules  might  be  wrought  out  of  the  act ;"  and  my  Lord  Hale  in 
the  case  of  Crossing  and  Scudamofe,  1  Vent.  141,  cites  and  approves 
of  this  passage  in  Hobart. 

A 1  though  formerly,  according  to  some  of  the  old  cases,  the  mode-O r 
form  of  a  conveyance  was  held  material,  3^et  in  later  times,  where  the 
inteM  appears  that  the  land  shall  pass,  it  has  been  ruled  nth^^wise^  nnd 
certainly  it  is  more  considerable  to  make  the  intent  good  in  passing  the 
estate,  if  by  any  legal  means  it  may  be  done,  than  by  considering  the 
manner  of  passing  it,  to  disappoint  the  intent  and  principal  thing,  which 
was  to  pass  the  land.  Osman  and  Sheafe,  3  Lev.  370.  Upon  this 
ground  we  go. 

We  are  all  of  opinion  that  in  this  case  there  is  every  thing-  nere'^'^ary 
to  make  a  good  and  effectual  covenant  to  s^d  seised  to  uses.cTFirstT 
here  is  a  dee^   ^ecoridl>^^ere  are  apt  words,  the  word  g^rant  alone 
would  have  been  siithcient7but  there  are  other  words  besides  which  are     ^    ^i 
material ;   viz.  a  covenant  that  the  grantor  has  power  to  grant,  and  a  •  ^^^^  \*T%n 
covenant  that  all  fines,  recoveries,  &c.  of  these  lands  shall  enure  to  the* /»j!!1jx>m-*'»^ 
uses  in  the  deec^^  "Thi^dlyf*  the  covenantor  was  seised  in  fey'^'^ourthlv.^'         *^«     * 
here  appears  a  most  plain  intent  that  Wilkinson  the  lessor  of  the  plain-   '  »  , 

tiJLsbould  have  the  lands  in  case  C.  Kirby  died  without  issue.     And  y.  ^^*^  ^^^ 
^M^sth',  here  is  a  proper  consideration  to  raise  an  use  to  the  lessor  of  the       (Ip 

plaintifL  for  the  covenantor  in  the  deed  names  him  to  be  the  eldest  son  6,  ^^^""^Vj^ 
of  his  well-beloved  uncle;  tl^seare  all  thej:ircumstances  necessary  to    aJcAjl/^^^^ 


make  a  good  deed  of  covenant  to  stand  seised  to  uses 

In  support  of  their  opinion  the  Chief  Justice  only  cited  and  observed  /t^"*-*  ^  '^ 
upon  these  cases,  viz.    Crossing  and  Scudamore,  1  Mod.  175,  2  Lev.  9, 

1  Vent.  137;  Walker  and  Hall,  2  Lev,  213;  Coultman  and  Senhouse, 
Tho.  Jones.  105,  Carth.  38,  39;  Baker  v.  Hil  2  W.  &  M.  B.  R.;  Os- 
min  and  Sheafe,  3  Lev.  370. 

The  Chief  Justice  lastly  cited  two  of  the  strongest  cases  mentioned 
for  the  defendants,  as  Hore  and  Dix,  1  Sid.  25,  and  Samoh  and  Jones, 

2  Vent.  318,  and  said  he  did  not  (for  his  own  part)  understand  them; 
and  that  if  he  had  sat  in  judgment  in  those  cases,  he  should  have  been 

Aig.Pbop. — 17 


/,  a  diMjJi 


258 


DERIVATIVE  TITLES 


(Part  2 


of  a  different  opinion  in  both ;  however,  he  said  the  present  case  dif- 
fered from  these  two  cases.  Lastly,  he  said  the  whole  court  were  clear 
of  opinion  that  a  man  seised  might  covenant  to  stand  seised  to  thejise 


qf  another  person  after  the  covenantor's  death, 
the  plain  tiff. «» 


MURRAY  V.  KERNEY. 


Postea  delivered  to 


(Court  of  Appeals  of  Maryland,  1911.    115  Md.  514,  81  Atl.  6,  38  L. 

[N.  S.]  937.) 


R.  A. 


Pattison,  J.,  delivered  the  opinion  of  the  Court. 

In  this  case  the  appellee,  plamtift"  below,  filed  his  bill  allegino^  that 
he  was  the  nwnpr,  in  fpp  'dimple,  of  a  lot  of  land  in  Baltimore  Citv.  sit- 
uated at  the  corner  formed  by  the  intersection  of  the  west  side  of  Cen- 
tral avenue  and  the  southeast  side  of  Gav  street  that  he  had  acquired 
from  one  Jane  J.  Murray  by  deed  dated  September  13th,  1905. 

The  bill  alleges  .that  Jane  J.  Murray  acquired  title  to  this  property  by 
written  ag;reement  executed  on  the  2d  dav  of  December,  1885,  by  the 
said  Jane  J.  Murray  and  her  three  sisters  who  were  at  the  time  owners 
of  said  lands  as  tenants  in  common.  The  agreement  was  executed  and 
acknowledged  by  them  with  all  the  formalities  required  in  the  execu- 
tion and  acknowledgment  of  deeds  and  was  duly  recorded,  and  is  as 
follows : 

"We,  the  undersigned,  daughters  of  the  late  Peter  and  Elizabeth 
Murray,  named  and  subscribed  to  this  instrument  of  writing,  do  enter 
into  an  agreement  that  for  the  benefit  of  each  and  all  of  them  named 
and  subscribed  to  this  agreement  and  are  now  living  in  and  owners 
iointlv  the  property  being  their  joint  interest  left  them,  Lyicy  A. 
Murray,  Ann  Murray,  Sara  A.  Crawford  and  Jane  J.  Murray,  as  heirs 
of  the  above  Peter  and  Elizabeth  Murray,  property  situated  on  the 
southwest  corner  of  Gay  and  Canal  streets  (now  Central  avenue) ;  the 
object  of  this  is  that  in  case  that  if  by  death  should  take  one  of  the 
parties,  the  other  three  sisters  are  the  owners  and  if  two  are  taken  bv 
cfeath,  then  the  two  remaining  sisters  are  the  owners,  and  if  by  death 
one  of  the  two  sisters  is  taken  then  the  last  surviving  sister  is  the  own- 
er^ and  in  order  to  carrv  faithfully  this  agreement,  we  hereunto  set  our 
iTgnH-:;  anij  ^ppk  anH  ^nh^rrihe  nur  names  this  second  day  of  December. 

in  the  year  eig-htPPn   j^nnrlrpH    anH   f^JCTJ-ily-flvp  " 

The  bill  further  alleges  that  the  three  sisters  all  died  in  the  lifetime 

6  9  There  have  been  many  cases  in  Avhicb  the  courts  have  been  astuteto  up- 
hold a^Ht^ed  as  operative  in  some  maimer!  See  Cheney  v.  WatUiiis,  1  HaT.  S,  J. 
riMd.1  .'^27,  2  Am.  l)po.  .'S.SO  (1804).  snstainJDir  as  a  feoffment  a  deed  defective  as 
a  bart^ain  and  sale,  for  wnnt  of  a  pro;)er  consideration:  I'erry  v.  Price,  1  .Mo. 
553  (181'5),  same;  Havens  v.  Sea  Shore  Land  C^o.,  47  N.  J.  Eq.  365.  20  Atl.  497 
(1890),  sustaining  as  a  bargain  and  sale  a  conveyanpp  in  the  words  "reinjjse. 
release  and  onitplniin,"  void  as  a  I'elease  liecause  the  estate  was  in  expectancy; 
Lambert  v.  Smith,  9  Or.  185  (1881) ;  ileld  v.  Culumijet,  4  tSawy.  5:J3,  i'eo:  Oas. 
No.  4,7tJ4  (1864). 


..'-A 


Ch.  1)  MODE  OF  CONVEYANCE  259 

of  Jane  J.  Murray,  leaving  her  surviving  them,  the  owner,  as  it  alleges. 
of  said  propertv  under  and  by  virtue  of  said  agreement,  and  that  she 
died  on  the  26th  dav  of  Tanuary.  1908.  The  bill  also  alleges  that  said 
property,  for  a  long  time  prior  to  the  acquisition  of  it  by  the  plaintiff, 
was  occupied  bv  him  and  wa's  in  his  possession  at  the  time  of  the  filing 
of  the  bill  That  at  the  time  of  the  death  of  the  said  Jane  J.  Murray, 
she  was  seized  of  the  property  adjoining  the  property  so  acquired  by 
him,  which  was  also  embraced  in  the  property  mentioned  and  describ- 
ed in  the  agreement  above  mentioned,  signed  by  th§  said  Jane  J.  Mur- 
ray and  her  sisters  aforesaid,  and  which  her  h^jrs,  nft^r  her  dpnth, 
agreed  to^pll  tn  th^  "Mprth  r.ny  S;trfp^  Permanmt  Rnilrliiio-  and  T.Q.nn 
Association  of  B^ltimnrp  Tify,  but  upon  examination  the  purchaser 
was  not  satisfied  with  the  title  of  Jane  J.  Murray  thereto,  its  objection 
being  based  upon  the  sufficiency  of  the  agreement  above  given  to  pass 
title  to  her  in  said  lands,  and  proceedings  were  instituted  in  the  Circuit 
Court  for  Baltimore  City  "for  the  sale  of  said  property  and  the  ratifica- 
tion of  the  contract  of  sale  to  the  said  corporation,  which  proceedings 
have  long  since  been  completed  and  the  title  of  said  adjoining  property 
conveyed  to  the  said  corporation." 

As  the  legal  sufficiency  of  the  title  of  Tane  T.  Murray  in  and  to_the  -        .  •    "-^^ 
lands  sold  as  aforesaid  had  been  questioned,  the  ^l^^tift"  thought  itC/'<*|klAy4*^^ 
best,  as  he  alleges^  ^f^  ha^^  pve<:"'^pd  to  him,  by  the  heirs  of   fane  T.    cCtA^ 
Murray,  a  confirmatory  deed  for  the  propertv  so  conveyed  unto  him  by    *^*'*'^^  . 
her  as  aforesaid.    To  this  end  he  called  ui)on  the  heirs  to  execute  the  ^ 

confirmatory  deed  and  all  of  them  executed  the  same  except  the  de-  ^^|t^^:i^^=^ 
fendants,  who  refused  to  do  so-  It  was  then  that  he  determined  to  file  /TjLu/i4  ^0% 
the  bill  asking  the  Court,  as  he  did,  to  construe  said  agreement  and  by  ^y  -.  *y 
its  decree  "remove  any  cloud  which  might  exist  or  be  supposed  to  exist"-^'*''*^'^^  '■'*''^  ' 
upon  his  title  to  said  lands. 

The  defendants  Mary  J.  Murray  and  William  A.  Murray  ansvi^ered, 
stating  tiiat  as  to  the  construction  of  the  paper  writing  or  agreement 
mentioned  in  the  bill,  and  as  to  the  relief  prayed  therein,  they  consent-  ^i^jw^ju*  ^ 
ed  to  and  desired  that  the  Court  should  pass  such  decree  as  to  it  might 
seem  just  and  proper  in  the  premises.  The  other  defendants,  James 
E.  Murray  and  Thomas  F.  Murray,  also  answered  neither  admitting 
nor  denying  the  things  alleged  in  the  bill,  but  requiring  proof  thereof. 

To  these  answers  the  general  replication  was  filed,  and  the  testimony 
of  the  plaintiff  alone  was  thereafter  taken,  which  substantially  sustains 
the  allegations  of  the  bill. 

The  question  presented  by  this  appeal  is,  did  Jane  J.  Murray,  the 
survivor  of  the  sisters,  who  were,  as  it  is  conceded,  at  the  time  of  tjie 
execution  of  the  paper  writing  above  set  forth,  the  owners  of  said-land 
involved  in  these  proceedings  as  tenants  in  common,  acquire  their  in- 
terest therein  under  and  by  virtue  of  such  written  agreement? 
""It  is  not  difficult  to  ascertain  the  meaning  of  said  paper  writing.  It 
was  evidently  the  purpose  and  intention  of  the  sisters  that  they  should 
continue  to  own  said  property  so  long  as  all  of  them  should  live,  and 


260  DERIVATIVE  TITLES  (Part  2 

upon  the  death  of  any  of  them  tlie  three  surviving  sisters  should  be 
the  owners  of  said  property,  and  upon  tlie  death  of  tlie  second  sister 
the  two  surviving  sisters  should  be  the  owners  thereof,  and  upon  the 
death  of  tlie  third  sister  the  surviving  sister  was  to  become  the  owner 
of  the  entire  interest  formerly  held  by  the  four  sisters,  or  the  owner  of 
the  property.  But  is  this  instrument  of  writing  legally  sufficient  to 
effect  the  purpose  and  meaning  aforesaid?  "Where  theintent  of  the 
grantor  to  pass  the  land  is  apparent,  if  for  any  reason  the  deed  or  in- 
strument by  which  the  transfer  of  title  was  intended  to  be  effected  can 
not  operate  in  the  way  contemplated  by  the  parties,  the  Court,  if  pos- 
sible,  will  give  it  effect  in  some  other  way,  and  judges  have  been  very 
astute  in  such  cases  in  their  endeavors  to  make  the  conveyance  opera- 
tive one  way  or  the  other  to  carry  mtoeffect  the  intention  of  the  grgji^ 
toTor  donor."  Bank  of  U.  b.  v.  Housman,  6  Paige's  Ch.  (N.  Y.)  534. 
If  for  any  of  the  reasons  assigned  by  the  appellant  the  instrument  of 
writing  mentioned  in  this  case  should  be  inoperative  as  a  common  law 
deed,  weJlmk  that  it  is  effective  as  a  covenant  to  stand  seized  to  uses 
under  the  Statute  of  Uses. 
^   ^/^  /'    Blackstone  defines  a  covenant  to  stand  seized  to  uses  as  "A  species 

U^f,.,^^    ^  I  of  conveyance  by  which  a  man  seized  of  lands,  covenants  in  considera- 
B       Aji>*^ \  tion  of  blood  and  marriage  that  he  will  stand  seized  of  the  same  tojhe 

m^  Z**"^^     I  use  of  his  child,  wife  or  kinsman,  for  life,  in  tail,  or  in  fee"    Hut  this 
^>^,  I  conveyance  can  only  operate  when  made  upon  such  weighty  and  inter- 

'^^^  Vesting  considerations  as  those  of  blood  and  marriage."    Book  2,  338. 

"No  particular  word  or  form  of  words  is  necessary  to  constitute  a 
'covenant  to  stand  seized.'  The  consideration  is  the  chief  requisite 
to  characterize  it  and  to  support  it  as  such  a  conveyance.  This  con- 
sideration is  blood  and  marriage.  If  the  consideration  appears  in  a 
deed,  though  there  be  no  express  words  of  consideration,  yet  it  is  suffi- 
cient to  raise  a  use  by  way  of  conveyance."  Barry  v.  Shelby,  5  T^nn. 
(4  Hayw.)  229,  231. 

Lord  Coke,  in  treating  the  Statute  of  Uses,  says :  "The  intention  of 
the  parties  is  the  principal  foundation  of  the  creation  of  uses,"  and  m 
Slay  v.  Mehan,  1  Lewt.  782,  the  Court  says:  "There  is  no  covenant 
that  admits  of  such  a  variety  of  words  as  that  of  a  covenant  to  stand 
seized."    Hayes  v.  Kershow,  1  Sandf.  Ch.  (N.  Y.)  263. 

The  covenant  must,  of  course,  be  by  deed  in  order  to  constitute  it  a 
covenant;  and  the  usual  term  employed  in  creatmg  it  is. "covenant." 
though  any  other  words  may  be  adopted  which  are  tantamount  there- 
to.   2  Washburn  on  Real  Property,  §  1379. 

The  deed  or  instrument  of  writing  that  was  before  the  Court  in  the 
case  of  Fisher  v.  Strickler,  10  Pa,  348,  51  Am.  Dec.  488,  was  as  fol- 
lows :  "Now,  know  ye,  that  we,  the  said  Jacob  Strickler  and  Christian 
Strickler,  have  this  day  agreed  with  each  other,  that  in  case  if  one  of 
them  shall  happen  to  die  unmarried,  or  intermarried  and  without  law- 
ful issue  or  issues  that  should  arrive  to  the  age  of  twenty-one  years, 
that  then  and  in  that  case  the  survivor  of  them  shall  be  the  sole  heir 


Ch.  1)  MODE   OF  CONVEYANCB  261 

of  the  deceased  one  both  to  the  real  and  personal  estate  of  tlie  deceas- 
ed, without  any  further  deed  or  conveyance ;  to  hold  the  real  estate  as 
well  as  the  personal  estate  of  the  deceased  unto  the  survivor  and  to  his 
heirs  and  assigns  forever."  The  Court  in  adopting  the  opinion  of  the 
lower  Court  said :  "Tloe  instrument  of  writing  set  forth  in  this  case  is 
what  is  technically  called  a  covenant  to  stand  seized  to  uses.     The  '^t' 

words  are  sufficient  to  create  the  covenant7the'iriteiitron  being  apparent 
on  the  face  of  the  deed,  that  each  party  should  stand  seized  to  the  use 
of  the  qtlier  surviving  him,  under  the  circumstances  stated.  And  the 
consideration  of  natural  love,  though  not  expressed,  is  manifest  from 
the  relation  of  the  parties.  Milbourn  v.  Salkeld, 'WilTes,  673 ;  Bedell  s 
Case,  7  Rep.  40;  Crossing  v.  Scudamore,  1  Ventr.  137;  3  Cruise's 
Dig.,  Part.  IV,  186-190." 

In  this  case,  as  it  is  conceded,  the  four  sisters  were  seized  in  fee,  as 
tenants  in  common,  of  the  lands  in  question,  and  being  so  seized  ex- 
ecuted the  deed  or  agreement  above  set  forth.  Each  was  seized  of._a 
one-fourth  undivided  interest  in  said  land  and  by  this  deed  or  instru- 
ment of  writing  each  covenanted  to  stand  seized  of  her  interest  therein 
to  her  use  during  her  life,  and  upon  her  death  to  the  use  of  such  of 
her  sisters  as  survived  hei.  successively  to  and  including  the  last  sur- 
vivor, who  became  seized  thereby,  in_fee.  of  the  interest  of  all  the  sis- 
ters in  said  lands. 

From  what  we  have  said  we  do  not  think  the  Court  below  erred  in 
its  ruling  and  will  therefore  affirm  its  decree. 

Decree  affirmed,  with  costs  to  the  appellee.         -^  />_£,tt._«->jr   a-.^-^  ^l^^rx,"-*^ 


(C)  Limitations  Upon  the  Operation  of  the  Statute  of  Uses 
TYRREL'S  CASE. 

(Court  of  Wards,  1557.     Dyer,  155.) 

Jane  Tyrrel,  widow,  for  the  sum  of  four  hundred  pounds  paid  by 
G.  Tvrrel  her  son  and  heir  apparent,  by  indenture  enrolled  in  chancery 
in  the  4th  year  of  E.  VI,  bargained.  _sold,  g_ave^  granted,  covenanted, 
and  concluded  to  the  said  G.  Tyrrel  all  her  manors,  lands,  tenements. 
&c.,  to  have  and  to  hold  the  said  &c.  to  the  said  G.  T.  and  his  heirs 
for  ever,  to  the  use  of  the  said  Jane  during  her  life,  without  impeacji- 
ment  of  waste ;  and  immediately  after  her  decease  to  the  use  xtf-the 
said  G.  T.  and  the  heirs  of  his  body  lawfully  begotten ;  ^and  in  defaiilt 
of  such  issue,  to  the  use  of  the  heirs  of  tlie  said  Jane  for  ever.  Quaere 
well  whether  the  limitation  of  tliose  uses  upon  the  habendum  are  not 
void  and  impertinent,  because  an  use  cannot  be  springing,  drawn,  or 
reserved  out  of  an  use,  as  appears  prima  facie?  And  here  it  ought 
to  be  first  an  use  transferred  to  the  vendee  before  that  any  freehold 
or  inheritance  in  the  land  can  be  vested  in  him  by  the  enrollment,  &c. 


ex  dem.  LLOYD  v.  PAS  SINGH  AM. 


262  DERIVATIVE  TITLES  (Part  2 

•^  ■ 

And  this  case  has  been  doubted  in  the  Common  Pleas  bef(5re  now : 
,*^ut  ideo  quaere  legem.    But  all  the  Judges  of  C.  B.  and  Saunders,  Chief 

r^  ^^  Justice,  thought  that  the  limitation  of  uses  above  is  void,  &:c.  for  sup- 

pose  the  statute  of  InroUments  (cap.  16.)  had  never  been  made,  but 
only  the  statute  of  Uses,  (cap.  10.)  in  27.  H.  VIII,  then  the  case  above 

■^     A  ^gtiKA^^-"^  could  not  be,  because  an  use  cannot  be  engendered  of  an  use,  &c.    See 

5.  M'^'j^       M.  10  &  11  Eliz.  &  fol.^0 

>v       ^  I  \        rLoMJl  (Co"''^  of  King's  Bench,  1827.    6  Barn.  &  C.  305.) 

X  m  L/>'^^>^*''^^Ejectment  for  lands  in  tlie  county  of  Merioneth.     Plea,  the  general 
X  ^  ^,    issue.     At  the  trial  before  Burrough,  J.,  at  the  last  Summer  Assizes 

'ffl  ^/P^^'^*'^wf  ■^^^  Salop,  it  appeared  that  the  lessor  of  the  plaintiff  claimed  as  devisee 
1     '  (l  ^  in  tail  under  the  will  of  Catherine  Lloyd,  who  was  co-heiress,  with 

>^,    >f*f  f  her  sister  Mary,  of  Giwn  Lloyd,  who  died  in  1774.     In  1746,  by  in- 

.^tv**'"*-!  denture  made  between  himself,  G.  Lloyd,  of  the  first  part,  Sarah  Hill 

of  the  second  part.  Sir  Rowland  Hill  and  John  Wynne  of  the  third 
part,,  and  Sir  Watkin  Williams  Wynne  and  Edward  Lloyd  of  the  fourth 
part ;  in  consideration  oL-an  intended  marriage  with  the  said_^rah 
Hill,  and  of  a  sum  of  £8000.,  being  the  marriage  .portion  of  the  said 
^arah  Hill,  paid  or  secured  to  be  paid  to  him  Giwn  Lloyd,  he.  Giwn 
0ovd,  did  grant,  release,  and  confirm  unto  the  said  Sir  Watkin  Wil- 
liams Wvnne  and  Edward  Lloyd  in  their  actual  possession  then  bejng, 
byyirtue  of  an  indenture  of  bargain  and  sale.  &:c..  and  to  their  heirs 
and  assigns,  certam  premises  therein  particularly  described.,  and, 
amongst  others,  the  premises  in  question ;  to  have  and  to  hold  the 
said  premises  with  their  appurtenances,  unto  the  said  Sir  Watkin  Wil- 
liams Wynne  and  Edward  Lloyd,  their  heirs  and  assigns ;  to  the  only 
proper  use  and  behoof  of  them  the  said  Sir  Watkin  Williams  Wynne 
and  Edward  Lloyd,  their  heirs  and  assigns  for  ever.,  i^pnp  Vw^^ ,  never- 
theless, and  subject  to  the  several  uses,  intents,  and  purposes  therein- 
after mentioned^  that  is  tosay,  to  theuseof_the_s^idJ^^wn  Lloy J  and 
his  heirs  until  tlie  said  in tenoe^^'nramage  should  take  effect^  and  from 
and  after  the  solemnization  of  the  said  intended  marriage,  then  to 
the  use  and  behooi  ot  Uiwn  JLloyd  and  Sarah  his  intended  wife,  and 
their  assigns,  for  and  during  the  term  of  their  natural  lives,  and  the 
longer  liver  of  them,  as  and  for  her  jointure  and  in  lieu  and  full  sat- 
isfaction of  dower;  and  from  and  after  the  decease  of  such  survij^or 
to  the  use  of  Sir  Rowland  Hill  and  John  Wynne,  their  executors,  ad- 
ministrators, assigns,  for  the  term  of  TOOO  years,  to  and  for  the  sev- 
eral intents  and  purposes  theremafter  mentioned ;  and  from  and  after 
the  expiration  or  other  sooner  determination  of  that  estate,  to  tlie  use 

TO  See  Sambach  v.  Dalton,  Tothill,  ISS  (1G34) ;  Jackson  v.  Cary,  16  Johns. 
(N.  Y.)  .^>04  (1819) ;  Reid  v.  Gordon,  35  JVld.  183  (ISTi:) ;  Croxall  v.  Shereid,  5 
Wall.  2G8,  18  L.  Ed.  572  (1866). 


Ch.  P  MODE   OF  CONVEYANCE  263 


and  behoof  of  tlie  first  son  of  the  body  of  the  said  Giwn  Lloyd_on  the 
body  of  the  said  Sarah  Hill,  his  intended  wife,  lawfully  to  be  begotten, 
and  the  heirs  male  of  the  body  of  such  first  son  lawfully  issuing;  ^nd 
for_d^fault  of  _  such  issue,  to  the  use  and  behoof  of  the  second  son 
in  like  manner ;  and  then  to  tlie  daughters;  ajid  for  rlpf^nli-  of  snrh 
issue,  to J:he  use  and  behoof  of  the  ?aifl  Oiwri  T.lnyd,  hi;:;  heirs  and 
assigns  for  ever.  And.it  was  thereby  declared  and  agreed  by  and  be- 
tween all  and  every  the  said  parties  to  the  said  indenture,  that  the  term 
of  1000  years  thereinbefore  limited  to  Sir  Rowland  Hill  and  John 
Wynne,  was  upon  trust  that  they  did  and  should  immediately  after  the 
decease  ofJlLwn  Lloyd,  by  sale  or  mortgage  ot  the" whole  or  qny  part 
thereof,  raise  the  '^^m  nf  ^3900  ^^  be  paid  and  applied  in  manner 
theremafter  mentioned.  And  it  was  thereby  declared  and  agreed  by 
and  between  the  parties  to  the  said  indenture  that  a  sum  of  £4000.  of 
the  said  sum  of  £8000.  should  immediately  after  the  solemnization  of 
the  saiH  mtenfled  marriage  be  paid  mto  the  hands  of  them  the  said 
Sir  Rowland  Hill  and  Tohn  Wynne,  upon  trust  that  the  same  should 
be  paid,  laid  out,  and  applied  by  them  with  all  convenient  speed  in 
the  purchase  of  freehold  lands,  tenements,  or  hereditaments  in  fee 
simple,  in  the  county  of  Merioneth  aforesaid  or  elsewhere  in  the  prin- 
cipality of  Wales,  or  in  that  part  of  Great  Britain  called  Engbtid,  with 
the  approbation  of  them  tlie  said  Giwn  Llovd  and  Sar^h  11111^ -his  in- 
tended  wife,  or  the  survivor  of  tliem,  testified  by  any  deed  or  writing 
under  the  hands  and  seals  of  them  the  said  Giwn  Lloyd  and  Sarah 
Hill,  and  the  survivor  of  them,  duly  executed  in  the  presence  of  two 
or  more  credible  witnesses ;  and  that  the  said  lands,  tenements,  and 
hereditaments,  when  so  purchased,  and  every  part  and  parrel  thereof. 
with  their  appurtenances,  should  be  conveyed  to  them  the  said  Sir 
Watkin  Williams  Wvnne  and  Edward  Llovd,  and  their  heirs,  and  to 
the  survivor  of  them  and  his  heirs,  to  and  for  the  use  and  behoof  of 
the  several  persons,  and  for  such  estate  and  estates  as  the  premises 
thereinbefore  mentioned,  and  thereby  granted  and  released  by  the  said 
Giwn  Lloyd  were  conveyed,  settled,  limited,  and  appointed.  And  it 
was  thereby  also  further  df^cj-jprpd  and  agreed  that  in  case  th e re 
should  be  no  issue  of  the  said  intended  marriage  and  that  the  said 
Sarah  Hill  should  be  minded  by  her  last  will  and  testament  to  give  or 
devise  any  sum  not  exceeding  £4000..  or  the  estate  thereby  intended 
to  be  purchased  therewith,  or  any  part  thereof  as  aforesaid,  to  any 
person  or  persons  whatsoever,  it  should  be  lawful  f^  ^^'^  fo'"  h<>r  thp 
sajd  Sarah  Hill,  notwithstanding  her  coverture^  to  p;-ive  and  devise  the 
s^me,  or  any  part  thereof,  to  such  person  or  persons,  and  to  and-Jor 
such  estate  and  estates,  and  such  uses,  intents,  and  purposes,  as  she 
should  limit,  direct  and  appoint :  and  in  such  case  they  the  said  Sir 
Watkin  Williams  Wynne  and  Edward  Lloyd  should  stand  seised  ofjall 
and  every  the  lands,  tenements,  an3  hereditaments  so  to  be  purchased 
as  aforesaid,  to  them  and  their  heirs,  to  and  for  such  uses,  intents, 
and  purposes,  as  she  the  said  Sarah  Hill  should,  by  such  her  last  will, 


>«^. 


> 


264  DERIVATIVE  TITLES  (Part  2 

limits  direct,  and  appoint ;  and  then  and  from  thenceforth  all  and  ev- 
ery the  uses  and  limitations  to  the  said  Giwn  Lloyd  and  his  heirs,  of 
and  concerning  the  said  lands,  tenements,  and  hereditaments  to  be  pur- 
chased as  aforesaid,  should  cease,  determine,  and  be  absolutely  void, 
to  all  intents'  and  purposes  whatsoever. 

Gjwn  Llovd  died  in  1774,  and  Sarah  his  wife  in  1782.  intestate,  and 
without  having  had  any  issue.  Catherine  Lloyd,  the  testatrix,  con- 
tinued in  possession  of  the  estate  from  the  death  of  Sarah  Lloyd  un- 
til the  time  of  her  own  death,  in  1787.  For  the  defendants,  it  was 
contended,  that  the  legal  estate  was  vested  in  Sir  W.  W.  Wynne  and 
Edward  Lloyd,  by  the  deed  of  1746.  and  consequently,  that  neitlier 
Giwn  Lloyd  nor  tlie  testatrix  had  any  legal  estate ;  and,  therefore,  the 
lessor  of  the  plaintiff  could  not  derive  any  such  estate  from  her.  The 
learned  Judge  reserved  the  point,  and  the  plaintiff  having  obtained 
a  verdict,  a  rule  nisi  for  entering  a  nonsuit  was  granted  in  Michaelmas 
term. 

BaylEy,  J,  I  am  of  opinion  that  we  ought  not  to  make  the  rule  ab- 
sglute  for  entering  a  nonsuit,  but  that  there  should  be  a  new  trial  in 
this  case.  Considering  the  length  of  time  that  has  elapsed  since  the 
purposes  of  the  settlement  made  by  Giwn  Lloyd  were  at  an  end,  I 
think  the  question  as  to  presuming  a  reconveyance  of  the  legal  estate 
ought  to  be  submitted  to  a  jury.  The  first  point  for  our  consideration 
is  upon  the  construction  of  the  settlement!  for  if  it  vested  the  legal 
estate  in  the  trustees,  then  the  lessor  of  the  plaintiff  had  nni-  the  1p<T.ql 
estate  unless  there  had  been  a  rf'cr'^^^^y^^^^  The  limitation  is  to  Sir 
W.  W.  Wynne  and  E.  Lloyd,  and  to  their  heirs  and  assigns,  habendum 
to  tiiem  their  heirs  and  assigns,  to  the  only  proper  use  and  behoof  of 
them  their  heirs  and  assigns  upon  certain  trusts.  I  felt  upon  first 
reading  it,  that  tliis  was  in  a  very  singular  form,  and  it  appeared  to 
me  that  the  words  "To  the  use  and  behoof  of  them  their  heirs  and 
assigns,"  had  been  introduced  by  an  accidental  mistake,  but  I  now 
think  that  they  were  introduced  by  design,  but  through  ignorance.  J.t 
is  certainly  singular  that  Giwn  Lloyd  should  part  with  tlie  legal  estate 
immediately  on  the  execution  of  the  settlement,  and  that  he  and  his 
wife  should  onlv"be  equitable  tenants  for  life.  It  is  also_singular  that 
the  term  created  for  the  purpose  of  raising  portions  should  be  a  mere 
equitable  term,  and  that  the  lands  to  be  purchased  with  the  £4000. 
should  be  limited  in  such  a  manner  as  to  leave  it  doubtful  whether 
or  no  the  cestui  que  trust  would  take  the  legal  estate.  That  would  not 
necessarily  be  the  case,  for  the  direction,  that  the  estate  purchased 
should  be  limited  "for  such  estate  and  estates,"  as  the  other  premises, 
might  mean  for  equitable  estates ;  and,  therefore,  this  is  not  absolutely 
inconsistent  with  the  idea  that  the  trustees  were  to  take  the  legal  es- 
tate. And  on  the  other  hand,  the  power  which  Giwn  Lloyd  and  his 
wife  would  have  had  to  defeat  all  the  contingent  limitations,  if  the 
trustees  did  not  take  the  legal  estate,  shows  so  strong  a  purpose  to  be 
answered  by  construing  the  deed  according  to  the  strict  legal  opera- 


Ch.  1)  MODE  OP  CONVEYANCE  265 

tion  of  the  language  used,  that  I  think  we  are  not  at  liberty  to  put 
any  other  construction  upon  the  words  than  that  which  thev  usually 
bear.  Now,  ever  since  I  have  belonged  to  tlie  profession  of  the  law, 
I  have  invariably  understood  that  an  use  cannot  be  limited  upon  an  U>i4_  ^4>— f 
use.  That  is  admitted  to  be  so  in  general,  but  a  distinction  has  been  ^  ^ca,^i^ 
tak^n  where  the  limitation  is  to  A.,  to  the  use  of  A.  in  trust  for  B., 
and  it  is  said  that  then  A.  is  in  by  the  common  law.  That  is  true; 
but  he  is  in  of  the  estate  clothed  with  the  use,  which  is  not  extinguished, 
but  remains  in  him.  In  the  case  of  Meredith  v.  Jones,  cited  in  argu- 
ment to  show  that  where  an  estate  is  limited  to  A.,  to  the  use  of  A., 
he  is  in  by  the  common  law,  it  is  said,  "For  it  is  not  an  use  divided 
frgni.^^"'^  pstptp,  as  where  it  is  limited  to  a  stranger,j3Ut  the  use  and  the 
estate  go  ■together."  That  case  therefore  shows,  that  although  the 
tr u stees  in  fliis  case  might  be  in  by  the  common  law,  yet  they  were  in 
both  of  the  estate  and  the  use.  There  are  two  cases  expressly  in  point. 
Lady  "IVhetstone  v.  Bury  is  a  very  clear  case,  and  the  words  used 
were  precisely  the  same  as  those  found  in  tlie  deed  in  question,  and  it 
was  there  decided,  and  also  in  The  Attorney  General  v.  Scott,  which 
came  before  Lord  Talbot,  one  of  the  greatest  real  property  lawyers 
that  ever  filled  the  office  of  Lord  Chancellor,  that  the  legalestate  vests 
in  him  to  whom  by  the  words  of  the  instrument  the  use  i^hmited,        .  , 

Upon  the  authority  of  these  two  cases,  I  am  of  opinion  that  the  use    ^^-^ap«j%-* 
of  tlie  estate  in  question  was  executed  in  the  trustees..    Then,  upon  '  k  "T- 

the  other  question  tiiere  is  certainly  some  proiniH    fnr  prp=n"T'"g  a  *^:  '^'^\ 

reconveyance ;  but,  on  the,  one  hand.  I  think  the  Court  would  be  going  ^v*"s 

a  great  deal  too  far  were  they  to  make  such  a  presumption,  and,  on  ^\j^' 

the  other,  I  think  the  lessor  of  the  plaintiff  ought  to  have  an  oppor-        -yy^     V'l 
tunity  of  submitting  that  pojpt  <"0  a  j^^'X-    The  rule  should,  therefore,  ■  '    l    . 

be  made  absolute  for  a  n^ej^J^rial.  V^        ''^vjh 

HoLROYD,  J.    I  agree  with  my  brother  Bayley,  that  in  this  case  there 
ought  to  be  a  new  trial.     Upon  the  first  perusal  of  the  deed  in  ques- 
tion I  had  no  doubt  that  the  legal  estate  was  vested  in  the  trustees, 
having  always  understood  that  an  use  cannot  be  limited  upon  an  use ; 
and  although  I  was  struck  by  the  ingenuity  of  the  distinction  pointed 
out  by  Mr.  Taunton,  yet  upon  further  consideration  it  appears  to  me 
that  his  argument  does  not  warrant  it.     The  argument  is,  that  as  the 
trustees  did  not  in  the  first  instance  take  to  the  use  of  another,  but  /         a 
of  themselves^  they  were  in  by  the  common  law,  and  not  the  statute :  >  ^.  ""^  Cytrtr 
that  the  first  use  was,  therefore,  of  no  effect,  and  the  case  was  to  be  I    ^^^^  ^ 
considered  as  if  the  deed  had  merely  contained  the  second  limitation  \ 
to  use^.     Bu^ll^^J;  is*  nqt  go.  for  although  it  be  true  that  the  trustees 
take  the  seisin  by  the  common  law,  and  not  by  the  statute,  yet  they        .         a      r;^ 
take  that  seisin  to  the  use  of  themselves,  and  not  to  the  use  of  another.    J-^dj^:^^ — ^ 
in  which  case  alone  the  use  is  executed  by  the  statute..  They  are,  there-  y'uJLAx^  -^ 
fore,  seised  in  trust  fnr  another,  and  the  legal  estate  remains  in  them.  yOy^i,*.^aXt^* 
As  to  the  question  of  intention,  even  if  it  were  intended  that  the  deed 
should  operate  in  a  different  mode  from  that  pointed  out  by  the  law. 


V** 


S 


266 


DERIVATIVE   TITLES 


(Part  2 


when  the  le^al  estate  is  ^iven  to  trustees,  that  Intention  cannot  counter- 
vail the  law.  But  the  intention  appears  to  me~altogeffier  doubtful ;  the 
absence  of  trustees  to  preserve  contingent  remainders  affording  a 
strong  reason  for  supposing  that  the  parties  meant  to  give  the  legal 
estate  to  the  trustees. 

LiTTLEDALE,  J.  I  am  entirely  of  the  same  opinion.  It  is  said,  that 
by  the  construction  now  put  upon  the  deed  the  intent  of  the  parties 
will  be  defeated.  •  If  we  were  not  construing  a  deed,  I  should  feel  dis- 
posed to  give  a  liberal  effect  to  the  intention,  but  if  all  matters  of 
convenience  and  inconvenience  which  raise  a  presumption  of  intention 
are  to  be  taken  into  consideration,  as  affording  rules  for  the  construc- 
tion of  deeds,  and  are  to  have  the  eft'ect  of  overruling  the  plain  words 
of  such  instruments,  the  law  will  very  soon  be  thrown  into  utter  con- 
fusion. Here,  however,  there  is  a  balance  of  inconveniences,  and 
therefore  we  may  come  at  once  to  the  legal  construction  of  the  settle- 
ment. I  never  entertained  a  doubt  that  a  second  series  of  uses  coujd 
not  be  executed.  It  is  true,  that  certain  cases  shew  these  trustees  to 
have  taken  the  estate  by  the  common  law,  but  tliev  took  it  coupled 
with  the  use.  The  cases  cited  upon  this  point  are  perfectly  clear,  and 
they  are  well  collected  in  a  note,  by  Serjt.  Williams,  to  Jefferson  v. 
Morton,  2  Saund.  11,  n.  (17).  However  for  the  reasons  given,  I  think 
that  there  ought  not  to  be  a  nonsuit,  but  a  new  trial. 

Rule  absolute  for  a  new  trial. 


URE  v.  URE. 
(Supreme  Court  of  Illinois,  1900.     1S5  111.  216,  56  N.  E.  10S7.) 

BoGGS,  J.  The  chancellor  entered  the  decree  here  appealed  frpmon 
the  theory  the  trust.created  by  the  second  clause  of  the  will  of  Marga- 
ret Ure,  deceased,  was  a  passive,  or  dry^ust^,  and  that  the  Statute  of 
Uses  instantly  operated  to  vest  the  legal  title  to  the  real  estate  in  jthe 
cestui  que  trust.  Whether  such  is  the  true  construction  of  the  clause 
is  the  only  question  presented  by  the  record.  The  clause  reads  as  fol- 
lows: 

"Second — After  the  payment  of  such  funeral  expenses  and  debts, 
I_givej  devise  and  bequeath  to  my  son  John  Francis  Ure  all  niy  cows, 
bulls  and  calves,  except  one  cow  and  my  horses  Rosy,  Jessie  and  Doll, 
and  tlie  remainder  of  my  real  and  personal  estate  equally  to  my  two 
sons,  Robert  Arnold  Ure  and  John  Francis  Ure:  Provided,  however, 
that  the  portion  of  my  estate  that  I  hereby  give,  devise  and  bequeath  to 
my  son  Robert  Arnold  Ure  shall  be  held  bv  a  trustee,  and  said  trustee 
to  be  the  executor  of  this  my  will  hereinafter  nanied,  to  hold  and  con- 
trol said  property  for  said  Robert  Arnold  Ure  in  trust,  he,  the  said 
RobertArnolj^  Ure,  to  have  the  income^only,  from  said  e_state_toJiis 
own  use  and  benefit  as  long  as  he  may  live,  and  on  his  death  said  estate 
to  revert  to  his  natural  heirs,"  etc. 


\>t 


i>fe>^ 


Ch.l) 


MODE  OF  CONVEYANCE 


207 


The  trust  estate,  as  appears  from  the  will,  consisted  of  t^th  real  and 
pe£sonal  property.  The  Statute  of  Uses  has  no  application  to  persojial 
property,  and  the  title  to  that  portion  of  the  trust  property  was  not  af- 
fected  by  that  statute.  27  Am.  &  Eng.  Ency.  of  Law,  p.  Ill,  and  cases 
cited  in  note  1 ;  3  Jarman  on  Wills,  p.  51,  note  2.  Speaking  of  the  rule 
of  construction  adopted  in  some  instances  when  a  trust  estate  consists 
in  part  of  property  the  fee  whereof  necessarily  vests  in  the  trustee,  it 
is  said  in  Jarman  on  Wills,  (vol.  3,  p.  85,  5th  Am.  Ed.) :  "It  seems  that 
wlTere  a  will  is  so  expressed  as  to  leave  it  doubtful  whether  the  testa- 
tor mtended  the  trustee  to  take  the  fee  or  not,  the  circumstance  that 
there  is  included  in  the  same  devise  other  property  which  necessarily 
vests  in  the  trustee  for  the  whole  of  the  testator's  interest  affords ji 
ground  for  giving.  \hfi  will  thf  snnie  rnnstruction  as  to  the  estate  in 
qU£^Uop." 

The  income  of  the  estate,  both  personal  and  real,  is  bequeathed  to 
said  Robert  Arnold  Ure  during  his  lifetime  and  the  remainder  in  fee 
devised  to  his  "natural  heirs."  The  trustee  is  empowered  to  "hold  and 
control"  the  property  in  trust,  etc.,  and  these  words  measure  and  fix 
the  duties  of  the  trustee.  The  word  "hold,"  which  was  a  technical 
word  as  employed  formerly  in  the  tenendum  clause  of  a  deed,  has  now 
no  technical  meaning  when  used  in  such  instruments.  Bouvier's  Law 
Die.  "Tenendum";  Wheeler  v.  County  of  Wayne,  132  111.  599,  24  N. 
E.  625.  Among  others,  the  foljowing  definitions  of  the  word  'Uioldl' 
are  given  by  Mr.  Webster:  "To  derive  title  to :  to  retain  in  one's  keep- 
ing; to  be  in  possession  oLl  to  occupv :  to  maintain  authority  over." 
The" word  "control"  has  no  legal  or  technical  meaning  distinct  from  that 
given  in  its  popular  acceptation.  Webster  employs  the  word  "superin- 
tendence" as  expressive  of  the  meaning  of  the  word  "control,"  and  gives 
the  word  "control"  as  one  of  the  synonyms  of  the  word  "superintend- 
ence." The  same  lexicographer  defines  the  word  "superintendence"  as 
follows :  "The  act  of  superintending ;  care  and  oversight  for  the  pur- 
pose of  direction  and  with  authority  to  direct."  The  word  "manage" 
is  defined  to  mean  "to  direct ;  control ;  govern ;  administer ;  oversee ;" 
(Anderson's  Law  Die.) ;  and  the  words  "control"  and  "manage"  have 
been  held  to  be  synonymous.     (Youngworth  v.  Jewell,  15  Nev.  48.) 

Power  to  hold  alid  the  duty  to  control  the  trust  estate  involve  the 
custody  and  possession  of  the  trust  property,  both  real  and  personal, 
and  such  a  trust  is  not  merely  passive.  It  is  not  indispensable  to  the 
power  and  duty  of  a  trustee  to  r^  the  trust  property  and  collect  the 
rent  thereon,  the  devise  shall  in  pcpress  terms  so  empower  him.  It  is 
enough  if  the  intent  to  invest  ham  with  such  power  can  be  gathered 
from  the_^ll.  3  Jarman  on  w/lls  (5th  Am.  Ed.)  p.  56.  It  was  mani- 
'festly  the  intention  of  the  maker  of  the  will  here  under  consideration, 
the  executor,  as  trustee,  shoulg  enter  into  and  retain  possession  of  the 
trust  estate  during  the  lifetime  of  the  said  Robert  Arnold  Ure.  and 
should  diligently  devote  hijg  energy^  judgment  and  discretion  to  the 
management  and  control  oi  the  property,  to  the  end  that  the  greatest 


268 


DERIVATIVE   TITLES 


(Part  2 


possible  incQme  should  be  secured  therefrom.  The  Statute  of  Uses 
does  not  execute  a  trust  of  this  character.  Meacham  v.  Steele,  93  111. 
135 ;  Kirkland  v.  Cox,  94  111.  400;  Kellogg  v.  Hale,  108  111.  164. 

The  decree  must  be  reversed,  and  the  cause  will  be  remanded  for 
further  proceedings  in  accordance  with  the  views  here  expressed.  Re- 
versed and  remanded.''* 


-y:' 


SECTION  3.— UNDER  MODERN  STATUTES 


ABBOTT  v.  HOLWAY. 

(Supreme  Judicial  Court  of  Maine,  1S81.     72  Me.  298.) 

This  is  an  action  on  the  case  for  waste.  The  writ  is  dated  Septem- 
ber 28th,  1878.*"""" 

The  plea  is  the  general  issue  and  brief  statement  denying  the  plain- 
tiff's title  and  claim. 

At  the  trial  it  was  admitted  tliaf^  Jampc;  Ab^<^^-t  ^"'•^g,  ^"  the  30th  of 
April,  1872,  and  long  had  been,  the  hjusband  of  the  plaintiff:  that  he 
died  May  5th,  1875;  tliat  the  defendant  is  the  administrator  on  his  es- 
tate ;  that  he  owned,  on  the  3Uth  of  April,  1872,  and  long  had  owned, 
tlie  premises  described  in  tlie  writ,  a  valuable  farm  in  Pittston,  upon 
which  was  a  large  timber  and  wood  lot;  that  he  continued  to  live  on 
the  farm  with  his  wite  managing  and  taking  the  crops  tliereof  until  his 
death,  she  now  surviving  him ;  tliat  in  the  winter  and  spring  of  1875, 
without  the  consent  and  against  the  remonstrance  of  the  plaintiff,  he 
caused  to  be  cut  and  hauled  to  market,  a  quantity  of  mill  logs,  cut  for 
that  purpose,  and  not  tor  fencing  or  repairs. 

Since  Abbott's  death,  his  administrator  has  sold  the  lumber  made 
from  the  logs  and  received  the  money  therefor. 

The  plaintiff"  put  in  evidence  the  deed  from  James  Abbott  to  her, 
dated  April  30th,  1872,  embracing  the  premises  described  in  the  writ 
and  upon  which  the  alleged  waste  was  committed,  and  proved  its  execu- 
tion and  delivery  on  the  day  of  its  date,  and  its  record  in  the  Kennebec 
registry  on  the  same  day  by  plaintiff's  procurement.  It  is  made  part 
of  the  case. 


71  A  tract  of  land  was  conveyed  to  H.  upon  the  following  uses  and  trusts : 
"This  conveyance  is  made  to  the  said  H.  as  trustee  to  hold  the  said  property 
for  the  sole  use  and  benefit  of  K.,  v/ife  of  M.,  free  from  dominion,  debts,  or  • 
liabilities  of  her  present  or  any  future  husband,  and  the  rents,  profits,  pro- 
ceeds of,  or  sale  or  profits  of  said  property,  or  any  portion  thereof,  shall  be 
held  under  the  same  trusts."  Was  the  le.^al  estate  vested  in  the  wife?  See 
Hart  V.  Bayliss,  97  Tenn.  72,  36  S.  W.  691  (1896) ;  Georgia,  C.  &  N.  Ry.  Co.  v. 
Scott,  38  S.  C.  34,  16  S.  E.  185,  839  (1892) ;   Sutton  v.  Aiken,  62  Ga,  733  (1879). 


1 


Ch.  1)  MODE  OF  CONVEYANCE     .       ^  .  2G9 

(Deed)   "^  *C^ 

"Know  all  men  by  these  presents,  tliat  I,  James  Abbott  of  Gardiner 
in  the  county  of  Kennebec,  in  consideration  of  one  dollar  paid  by  my 
wife  Clarissa  B.  Abbott,  and  for  the  purpose  of  providing  and  secur- 
ing  to  my  said  wife  a  comfortable  support  in  the  event  of  my  decease 
during  her  life,  the  receipt  whereof  I  do  hereby  acknowledge,  do  here- 
by give,  grant,  bargain,  sell  and  convey,  unto  the  said  Clarissa  B.  Ab- 
bott of  said  Pittston  her  heirs  and  assigns  forever  a  certain  lot  of  land 
situate  in  said  Pittston  and  bounded.     *     *     * 

^'This  deed  is  no^  to  take  effect  andoperate  as  a  conveyance  until 
my  decease,  and  incase  1  shall  survive  my  said  wife,  this  deed  is  not 
to  be  operative_as  a  conveyance,  it  beingthe  sole  purpose  and  object 
of  this  deed  to  make  a  provision  for  the  support  of  my  said  wife  if  she 
shall  survive  me,  and  if  she  shall  survive  me  then  and  in  that  event 
onlv  this  deed  shall  be  operative  to  convey  to  mv  said  wife  said  prem- 
ises in  fee  simple!  Neither  I,  the  grantor,  nor  the  said  Clarissa  B.  Ab- 
bott, the  grantee,  shall  convey  the  above  premises  while  we  both  live 
without  our  mutual  consent.  If  I,  the  grantor,  shall  abandon  or  desert 
my  said  wife  then  she  shall  have  the  sole  use  and  income  and  control 
of  said  premises  during  her  life. 

"To  have  and  to  hold  the  aforegranted  and  bargained  premises,  with 
all  the  privileges  and  appurtenances  thereof  to  the  said  Clarissa  B,  if 
she  shall  survive  me,  her  heirs  and  assigns,  to  their  use  and  behoof 
forever.  And  I  do  covenant  with  the  said  Clarissa  B.  her  heirs  and  as- 
signs, that  I  am  lawfully  seized  in  fee  nf  \\\e  premises ;  that  they  are 
free  of  all  incumbrances ;  that  I  have  good  right  to  sell  and  convey  the 
same  to  the  said  Clarissa  B.if  she  shall  outlive  me,  to  hold  as  aforesaid 
at  my  decease.  A.nd  that  I  and  my  heirs  shall  and  will  warrant  and 
defend  the  same  to  the  said  Clarissa  B.  if  she  shall  survive  me.  and  her 
heirs  and  assigns  forever,  against  the  lawful  claims  and  demands  of 
^  persons. 

"In  witness  whereof,  I,  the  said  James  Abbott,  have  hereunto  set  my 
hand  and  seal,  this  tliirtieth  day  of  April  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy- two. 

"James  Abbott.     [Seal] 

"Si?"ned.  sealed,  and  delivered  in  presence  of 
"N.  M.  Whitmore. 
"L.  Clay." 

Djily  acknowledged  a^d_recorded^ 

Barrows,  J.  The  plaintiff's  right  to  maintain  this  action  must  de- 
pend ultimately  upon  the  construction  to  be  given  to  the  deed  or  instru- 
ment under  which  she  claims  title,  and  upon  the  force  and  effect  of  the 
terms  used  therein  to  define  the  interest  which  she  acquired  by  virtue 
thereof. 

Our  statutes  (R.  S.  c.  '73,  §  1)  prnvi'f^p  tViai-  "a  person  owniiip^  real 
-estate  and  having  a  right  of  entry  into  it,  whether  seized  of  it  or  not, 


270  DERIVATIVE  TITLES  (Part  2 

.  may  rn]-|Yry  ?<•,  nrall  Viig  interest  in  it,  by  a  deed  to  be  acknowledged 
[ and  recorded  as  hereinaiter  proviaed."  JJetailed  regulations  as  to  the 
mode  of  execution  and  as  to  the  torce  and  effect  of  conveyances  thus 
made  and  recorded,  follow  this  general  provision  in  some  thirty  sec- 
tions, more,  or  less.  Can  it  be  doubted  that  under  such  statutes  the 
owner  of  real  estate  can  convev  in  the  manner  prescribed,  such  pp^^"  o^ 
portion  of  his  estate  as  he  and  his  grantee  may  a^ree.  subject  only  to 
those  restrictions  which  the  law  imposes  as  required  by  public  policy, 
bm  relieved  from  the  technical  doctrines  which  arose  out  of  ancient 
feudal  tenures,  and  all  the  restrictive  effect  which  they  had  upon  alien- 
ations. Why  prevent  the  owner  in  fee  simple  from  agreeing  withhis. 
grantee  (and  setting  forth  that  agreement  in  his  conveyance)  as  to  the 
tune  when,  and  the  conditions  upon  which,  the  mstrument  shall  be  op- 
erative to  transfer  the  estate  from,oneJLQ-ll'ip~ntlipr? 

In  substance  our  law  now  says  to  a  party  having  such  an  interest  in. 
real  estate  as  is  mentioned  in  R.  S.  c.  IZ,  you  may  convey  that  interest 
or  any  part  thereof  in  the  manner  herein  prescribed  with  such  limita- 
tions as  you  see  fit,  provided  you  violate  no  rule  of  public  policy,  and 
pla^e  what  you  do  on  record  so  that  aTTmay  see  how  the  ownership 
^ands.  ~ 

In  the  discussion  of  the  effect  of  the  statute  of  uses  and  of  our  own 
statutes  regulating  conveyances  of  real  estate  in  Wyman  v.  Brown,  50 
Me.  139,  (a  leading  case  upon  the  validity  of  conveyances  under  which 
the  grantee's  right  of  possession  was  to  accrue  not  upon  delivery  of 
the  deed  but  at  some  future  day,)  Walton,  J.,  remarks :  'fWe_am_al_so~| 
of  opinion  that  efl'ect  may  be  given  to  such  deeds  by  force  of  our  own  \ 
statutes,  independently  of  the  statute  of  uses.  Our  deeds" are  not  tram"- 
ed  to  convey  a  use  merely,  relying  upon  the  statute  to  annex  the  legal 
title  to  the  use.  They  purport  to  convey  the  land  itself,  and  being  duly 
acknowledged  and  recorded,  as  our  statutes  require,  operate  more  like 
feoffments  than  like  conveyances  under  the  statute  of  uses."  In  this 
connection  he  quotes  Oliver's  Conveyancing,  touching  the  operation  and 
properties  of  our  common  warranty  deed  to  the  effect  that  in  the  trans- 
fer authorized  by  the  statuteTiTthis  mode,  "the  land  itself  is  conveyed 
as^in  a  feoffment  except  that  livery  of  seizin  is  dispensed  with  upon 
complyinguaLtlLlhg  requisitioris_nf  the  statute,  acknowledging  anH  rp- 

•  cording,  substituted  instead  of  it." 

■'        ''^  ^  - — 1 

And  he  concludes  that  deeds  executed  in  accordance  with  the  provi- 1 
sions  of  our  statutes  and  deriving  their  validity  therefrom  may  be  up- 
held thereby,  as  well  as  under  the  statute  of  uses,  notwithstanding  thev 

purport  to  convev  freeholds  to  commence  at  a  future_day.  ^ 

In  other  words  the  mere  technicalities  of  ancient  law  are  dispensed 
with  upon  compliance  with   statute  requirements._   Theacknowledg- , 
f  ment  and  recording  are  accepted  in  place  of  livery  of  seizin.  and~insl 
)  competent  to  fix  such  time  in  the  future  as  the  parties  may  agree  upon  \ 
I  as  the^ime  when  the  estate  of  the  grantee  shall  commence.     No  more  \ 
V.  necessity  for  Hmiting  one  estate  upon  another,  or  for  having  an  estatej 


(_ 


Ch.  1)  MODE  OF  CONVEYANCE  271 

^''  (of  some  sort)  pass  immediately  to  the  grantee  in  opposition  to  the  ex- 
^  pressed  intention  of  the  parties. 

The  feoffment  is  to  be  regarded  as  taking  place,  and  the  livery  of 
seizin  as  occurring  at  the  tmie  hxed  in  tlie  instrument,  ^nd  ^he  ac- 
knowledgmentand  recording  are  to  be  considered  as  giving  the  neces- 
sary publicity  which  vyas  sought-  in  the  ancient  ceremonv.  The  ques- 
tions, did  anything  pass  by  the  conveyance,  if  so,  what,  and  when,  are 
to  be  determined  by  a  fair  construction  of  the  language  used,  without 
reference  to  obsolete  technicalities.  The  instrument  will  be  upheld  ac-  fWjuJ^  *^ 
cording  to  its  terms,  if  those  terms  are  definite  and  intelligible,  and  not^i  ^A-iKj^y^ 
in  contravention  of  the  requirements  of  sound  public  policy.  -^        ^^^ 

The  defendant,  while  he  does  not  controvert  the  doctrine  of  Wyman 
V.  Brown,  insists  that  nothing  passed  by  the  deed  of  James  Abbott  to 
his  wife,  because  according  to  its  terms  it  was  left  uncertain  whether 
the  instrument  would  ever  take  effect  as  a  conveyance,  that  not  even  a 
contingent  remainder  which  the  plaintiff  claims,  passed  when  the  deed 
was  made  and  delivered,  that  it  amounts  at  most,  to  a  mere  executory 
agreement,  and  any  recognition  of  its  validity  is  contrary  to  public 
policy,  because  it  is  an  attempt  to  evade  the  statutes  regulating  the  mak- 
ing and  execution  of  wills,  i  But  the  instrument  was  duly  executed  by 
the  defendant's  testator,  a  man  capable  of  contracting,  and  having  an 
absolute  power  of  disposition  over  his  homestead  farm,  subject  only  to 
the  rights  of  his  existing  creditors.  It  was  duly  recorded  so  that  all  the 
world  might  know  what  disposition  he  had  made  of  a  certain  interest  in  «. 

it,  and  what  was  left  in  himself.  If  operative  at  all,  it  operated  differ-  //#t<ur^-^  ^ 
entlv  from  a  will.  A  will  is  ambulatory,  revocable.  Whatever  passed  Ju%^  M\,tn»^ 
fr>  the  wife  by  thi<i  irmtrnment  became  irrevocably  hers.  \ufx^ 

We  fail  to  perceive  that  any  principle  of  public  policy,  or  anything    ■■  * 

in  the  statute  of  wills  calls  upon  us  to  restrict  the  power  of  the  owner 
of  property  unincumbered  by  debt,  to  make  gifts  of  the  same,  and  to    t(r%£^ m^J> 
qualify  those  gifts  as  he  pleases,  so  far  as  the  nature  and  extent  of  /U^vf^ft*^.  , 
them  are  concerned.     !^blic  policy  in  this  country  has  been  supposed  .^  '^^^     ' 
rather  to  favor  the  facilitation  of  transt'ers  ottitle,  and  tne  alienation  . 
of  _gstates.  and  the  exercise  of  the  most  ample  power  over  property  by  *^^*^^  ^^''^^ 
its  owner  that  is  consistent  with  goo3^  faith  and  fair  dealing.     The  CUh/x^  '%^ 
selfish  principle  may  fairly  be  supposed  to  be,  in  all  but  exceptional  SuJUjJt^ 

cases,  strong  enough  to  prevent  too  lavish  a  distribution  of  a  man's  .  ^Jj/j 
property  by  way  of  gift.  ^^**    \  ^^ 

The  learned  counsel  for  defendant  speaks  of  this  instrument  as  "an 
attempt  to  make  an  executory  devise,"  "a  mode  of  devising  real  estate."         ^^^^^^ 
It  is  something  more  and  different,  and  if  the  doctrine  of  Wyman  v.       _     / 
Brown  is  to  be  maintained,'  it  gives  to  the  grantee  a  contingent  right  in    >-*t^-«>M''****'^ 
the  property  which  (unlike  the  interest  of  a  devisee  in  the  lifetime^f 
the  testator)  cannot  be  taken  from  her,  and  may,  upon  the  performance 
of  the  condition  make  her  the  owner  of  the  premises  in  fee  simple,  ac- 
cording to  its  terms.     It  is  argued  that  if  the  court  give  ettect  to  ttiis 
-mode  of  transmitting  a  title  to  real  estate,  it  will  lead  to  uncertainty  as 


272  DERIVATIVE  TITLES  (Part  2 

to  the  rights  of  the  respective  parties,  and  to  litigation  between  the 
heirs  of  the  grantor  and  grantee,  that  "it  would  tie  up  estates,  embar- 
rass titles,  and  impair  the  simplicity  of  our  modes  of  conveyance," 
without  producing  any  compensatory  benefit.  Why  these  results 
should  follow  (when  the  validity  and  effect  of  such  conveyances  has 
once  been  determined)  in  any  greater  measure  than  they  are  liable  to 
follow  any  kind  of  family  settlement  is  not  apparent.  What  we  do 
is  precisely  this.  We  uphold  a  conveyance  in  conformity  with  the 
agreement  of  the  parties  therem  expressed,  that  the  title  of  the  p^rantee 
shall  accrue,  not  upon  the  delivery  of  the  deed,  but  upon  the  happening- 
of  a  certain  event  (the  proof  of  which  is  commonly  easy)  at  a  future 
time  specified  in  the  recorded  conveyance.  Wliy  should  harm  come  of 
"^  it  any  more  than  from  a  lease  made  to  run  from  a  future  day  certain  ? 

In  substance  the  grantor  says  to  the  grantee,  I  give  you  this  convey- 
ance made  and  executed  in  the  manner  prescribed  by  our  statute,  so- 
that  you  may  have  an  irrevocable  assurance  that  if  you  outlive  me  the 
property  therein  described  shall  be  yours  iQ_fee_simeki_from  and  after 
my  decease,  in  like  manner  as  if  you  took  the  same  by  livery  of  seizin 
on  that  day,  under  a  feoffment  from  me,  the  statute  provisions  for  a 
recorded  deed  dispensing  with  that  ceremonv-  Doubtless  this  is  all 
contrary  to  the  ancient  doctrine,  which  is  thus  stated  in  Greenleaf's 
Cruise,  vol.  IV,  p.  *48:  "A  feoffment  cannot  be  made  to  commence 
in  f uturo,  so  that  if  a  person  makes  a  feoffment  to  commence  on  a  fu- 
ture day,  and  delivers  seizin  immediately,  the  livery  is  void,  and  noth- 
ing more  than  an  estate  at  will  passes  to  the  feoffee,"  What  was  the 
foundation  of  this  doctrine?  It  is  stated  ibidem  thus:  "This  doctrine 
is  founded  on  two  grounds;  first,  because  the  object  and  design  of 
livery  of  seizin  would  fail  if  it  were  allowed  to  pass  an  estate  which 
was  to  commence  in  futuro;  as  it  would,  in  that  case,  be  no  evidence 
of  the  change  of  possession ;  secondly,  the  freehold  would  be  in  abey- 
ance which  is  never  allowed  when  it  can  be  avoided."  But,  given  the 
svg;tem  of  re'cord^d  conveyances  for  which  our  statutes  provide,  the 
ceremony  of  livery  of  seizin  becomes  of  no  importance  as  an  evidence 
or  the  change  of  possession ;  and  we  shall  find  our  natural  horror  of  a 
freehold  in  abeyance  (if  It  could  be  demonstrated  that  such  a  result 
would  follow  from  allowing  a  freehold  to  take  eft'ect  in  futuro)  greatly 
mitigated  by  the  circu_nistance  that  here  and  now  it  is  no  longer  nec- 
essarv  "that  the  superior  lord  should  know  on  whom  to  call  for  the 
military  services  due  for  the  feud,"  and  so,  in  any  event,  the  defence  of 
File  commonwealth  will  not  be  weakened;  and  by  the  further  circum- 
stance that  "every  stranger  who  claims  a  right  to  anv  particular  lands. 
may  know  against  whom  he  ought  to  bring  his  praecipe  for  the  recov- 
ery of  them.'Lbj  a  simple  inspection  of  the  public  records,  and  proof  of 
actual  possession. 

The  doctrine  of  Wyman  v.  Brown  is  a  good  illustration  both  of  the 
maxim,  cessante  ratione,  cessat  etiam  lex,  and  of  the  changes  wrought. 
in  the  common  law  by  statutory  provisions. 


Ch.  1)  MODE  OP  CONVEYANCE  275 

The  Virginia  doctrine  that  a  feoffment  cannot  be  made  to  commence 
in  futuro  was  long  ago  done  away  with  by  statute..  Tate's  Dig.  p.  175. 
While  it  does  not  form  part  of  the  decision  in  Wyman  v.  Brown,  this 
matter  underwent  a  careful  scrutiny,  and,  upon  full  consideration,  the 
court  agreed  that  our  statute  system  of  registered  conveyances  brought 
about  the  same  result  here. 

We  are  at  liberty,  then,  to  give  to  the  language  used  by  the  granto r 
in  a  deed,  its  obvious  meaning,  without  invalidating  the  deed,  to  say 
tliat  it  shall  operate  as  the  parties  intended,  and  carry  an  estate  to  com- 
mence in  fiitnrn  if  they  fio  agree?  without  the  necessity  of  resorting~to 
any  subterfuges  under  which  the  estate  thus  created  to  commence  in 
futuro  may  be  recognized  as  existmy  only  by  way  of  remainder  or  b.y 
virtue  of  some  imputed  covenant  to  stand  seized. 

A  single  reading  of  this  conveyance  of  James  Abbott  to  his  wife  is 
sufficient  to  satisfy  one  that  it  was  no  part  of  the  intention  or  expecta- 
tion of  either,  that  the  wife  acquired  thereby  any  interest  in  the  home- 
stead farm  during  the  life  of  the  grantor  except  as  expressly  therein 
declared,  to  wit,  a  right  to  the  "use,  income  and  control  nf  said  premise'; 
during  her  life,"  in  case  the  husband  deserted  her  (which  he  did  not  do), 
and  besides  this,  an  irrevocable  right  to  the  same  in  fee  simple,  in  case 
she  survived  her  husband,  her  estate  to  commence  at  his  decease. 

The  language  of  the  deed  differs  widely  from  that  of  any  of  the  con- 
veyances which  have  been  sustained  as  passing  an  estate  in  remainder 
to  the  grantee  with  a  life-estate  in  the  grantor  reserved.  If  the  object 
of  the  draftsman  had  been  to  exclude  the  idea  that  the  conveyance 
should  have  any  force  until  the  time  therein  appointed,  in  other  words, 
to  have  it  take  effect  as  a  feoffment  made  at  the  time  fixed  in  futuro,  to 
convey,  as  of  that  date,  an  estate  in  fee  simple  and  to  have  no  other 
operation,  it  is  difficult  to  see  how  he  could  have  made  that  object 
plainer  in  words. 

"This  deed  is  not  to  take  effect  and  operate  as  a  conveyance  until 
my  decease,  and,  in  case  I  shall  survive  my  said  wife,  this  deed  is  not 
to  be  operative  as  a  conveyance.  *  *  *  jf  she  shall  survive  me, 
then,  and  in  that  event  only,  this  deed  shall  be  operative  to  convey  to 
my  said  wife  said  premises  in  fee  simple."  Note  also  the  language 
of  the  habendum  and  covenants.  A  convevance  thus  fra.med  cannot 
give,  the  rights  of  a  remainderman  presently  to  the  grantee,  nor  so  op- 
erate forthwith,  as  a  conveyance  as  to  convert  tlie  holdinp^  of  the  gran  - 
tQT  from  tiiat  time  forward  into  a  mere  tenancy  for  life^ 

Such  language  bears  little  resemblance  to  the  stipulation  in  the  deed 
which  was  under  consideration  in  Drown  v.  Smith,  52  Me.  142,  "but 
the  said  (grantee)  is  not  to  have  or  take  possession  till  after  my  de- 
cease; and  I  do  reserve  full  power  and  control  over  said  farm  during 
my  natural  life." 

It  differs  quite  as  much  from  the  provision  in  the  case  of  Wyman  v. 
Brown,  to  the  effect  that  Mrs.  Brown  was  "to  have  quiet  possession^ 
Aig.Pbop. — 18 


274  DERIVATIVE  TITLES  (Part  2 

and  the  entire  income  of  the  premises  until  her  decease."  Drown  v. 
Smith,  however,  is  an  authority  which  reheve's  us  on  the  question 
whether  stipulations  which  on  the  face  of  them  are  not  consistent  with 
terms  previously  used  importing  a  present  conveyance,  will  avoid  the 
deed.  There  is  an  apparent  contradiction  in  saying,  I  convey  this  prop- 
erty to  you,  but  this  is  no  conveyance  until,  &c.,  nor  unless,  &c.  j3ut 
the  modern  cases  like  Drown  v.  Smith,  indicate  that  if  the  intent,  tak- 
ing  the  whole  together,  is  clear  and  intelligible,  the  court  will  give  eftegt 
-^■^  to  It  notwithstanding  some  apparent  repugnancv.  If  a  deed  can  be 
upheld  where,  as  in  Drown  v.  Smidi,  the  grantor  reserves  to  himself 
"full  power  and  control  over  said  farm  during  my  (his)  natural  life," 
on  the  face  of  it  including  the  power  of  disposition,  we  may  give  its 
fair  and  just  effect  to  one  framed,  as  this  is,  to  convey  an  estate  in  fee 
simple  to  the  grantee,  to  commence  at  the  decease  of  the  grantor,  pro- 
vided the  grantee  outlives  him ;  and  tlie  true  effect  seems  to  be  that  of 
a  feoffment  under  which  the  execution  and  record  of  the  deed  operate 
in  the  same  manner  as  livery  of  seizin  made  at  the  time  of  the  gran- 
tor's decease.  \  It  gives  no  right  of  action  for  waste  com^mitted  during 
(he  grantor's  life.  While  this  grantor  lived  he  could  do  anything  with 
khe  homestead  farm  not  inconsistent  with  the  right  which  he  had  con- 
veyed to  his  wife  to  take  it  from  the  time  of  his  decease,  if  she  survived 
mm.  as  the  owner  thence  forward  m  tee  simple. 

If  the  testimony  of  Lapham  and  Palmer  represents  truly  the  acts  of 
which  the  plaintiff  complains  as  waste,  her  suit,  were  it  otherwise  well 
founded^  would  fail  for  want  of  proof  of  anything  which  amounts__to 
waste  according  to  the  best  considered  decisions  in  this  country.  See 
Drown  v.  Smith,  ubi  supra,  and  cases  there  cited. 

PlaintiffjionsiiitJJ' 

72  See  Miller  v.  Miller,  91  Kan.  1,  136  Pac.  953,  L.  R.  A.  1915A,  671  (1913). 


yt^^  A^tyClyt^Pi^    AA.^Jte/0 


Ch.  2)  EXECUTION   OF  DEEDS  275 

CHAPTER  II 
EXECUTION  OF  DEEDS 


SECTION  1.— SIGNING 


At  common  law  signing-  was  not  essential  to  a  ^ood  deed.  Black- 
stone  seems  to  have  been  of  the  opinion  that  the  Statute  of  Frauds 
made  signing  necessary.  2  Bl.  Comm.  306.  The  general  and  better 
view,  however,  has  been  that  the  Statute  of  Frauds  did  not,  in  its  re- 
quirement of  a  signature,  include  instruments  under  seal.  Avetine  v. 
Whisson,  4  M.  &  G.  801 ;  Taunton  v.  Pepler,  6  Madd.  166.  See  also 
Cooch  V.  Goodman,  2  Q.  B.  580,  596;  Cherry  v.  Henning,  4  Ex.  631. 
The  statutes  of  the  various  states  in  this  country  quite  uniformly  re- 
quire_that  a  deed  effective  as  a  conveyance  shall  be  signed  by  the  con- 
vev'ing  party  or  his  agent.  The  state  statutes  should  be  consulted  on 
this  point. 


SECTION  2.— SEALING 


JACKSON  ex  dem.  GOUCH  v.  WOOD. 
(Supreme  Court  of  New  York,  1S15.     12  Johns.  73.) 

This  was  an  action  of  ejectment  for  lot  No.  7,  in  the  town  of  Locke, 
in  the  county  of  Onondaga,  and  was  tried  before  Mr.  Justice  Thomp- 
son, at  the  Cayuga  circuit,  in  June,  1813. 

The  lessors  of  the  plaintiff  gave  in  evidence  the  exemplification  of 
a  patent,  dated  the  13th  of  June,  1791,  to  John  Day,  for  the  lot  in  ques- 
tion. He  then  proved  that  Moses  Couch  was  the  identical  person  who 
served,  and  was  known  in  the  New  York  line  of  the  army  by  the  name 
of  John  Day,  and  that  he  was  the  same  person  to  whom  the  patent  was 
granted  by  that  name.  It  was  also  proved,  that  Moses  Gouch,  alias 
dictus  John  Day,  was  dead,  and  that  the  lessors  of  the  plaintiff  were 
his  heirs  at  law. 

The  defendant  gave  in  evidence  an  instrument  in  writing,  endorsed 
on  the  original  patent,  dated  the   19th  of   November,    1792,  signed 

his 

"John  X  Day,"  but  without  any  seal,  by  which  he,  John  Day,  for  the 

mark  "^  ' 

consideration  of  ten  pounds,  paid  to  him  by  Benjamin  Prescott,  bar- 
gained, sold,  remised,  released  and  quit-claimed  to  the  said  Benjamin 


276  DERIVATIVE  TITLES  (Part  2 

Prescott,  his  heirs  and  assigns,  all  his  right,  title,  claim,  and  interest, 
of,  in,  and  to,  the  premises  granted  and  described  in  the  patent,  to  have 
and  to  hpld  the  same  to  the  said  Benjamin  Prescott,  and  to  his  heirs 
and  assigns,  to  his  and  tlieir  only  proper  use  and  benefit  forever ;  and 
to  this  instrument  the  names  of  two  witnesses  were  subscribed. 

There  never  having  been  any  seal  to  the  writing  thus  endorsed  on 
the  patent,  it  was  objected,  on  the  part  of  the  plaintiff,  that  it  amount- 
ed to  no  more  than  a  parol  contract,  and  was  not  sufficient  to  pass  the 
land.  This  point  was  reserved  by  the  judge,  and  the  defendant  gave 
in  evidence  sundry  mesne  conveyances  from  Benjamin  Prescott  to  him- 
self, all  of  which  had  been  duly  recorded :  he  also  showed  a  possession 
.  for  seven  or  eight  years.  A  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  Court,  on  a  case,  as  above  stated. 

Platt,  J.,  delivered  the  opinion  of  tlie  Court. 

The  single  question  in  this  case  is,  whether  an  estate  in  fee  can  be 
'^  conveyed  otherwise  than  by  deed;    that  is^to  say,  whether  a  seal  js^ 

essential  to  such  conveyance. 

The  earliest  mode  of  transferring  a  freehold  estate,  known  in  the 
English  common  law,  was  by  livery  of  seisin  only.  Co.  Litt.  49,  b,  48, 
b.  But  when  the  art  of  writing  became  common  among  our  rude 
ancestors,  the  deed  of  feoffment  was  introduced,  in  order  to  ascertain 
with  more  precision  the  nature  and  extent  of  the  estate  granted,  with 
the  various  conditions  and  limitations.  This  deed,  however,  was  of  no 
validity,  unless  accompanied  by  the  old  ceremony  of  livery  and  seisin. 
2  Black.  Com.  318. 

The  statute  of  uses  (27  Hen.  VIII)  gave  rise  to  the  deed  of  bargain 
and  sale;  and,  soon  afterwards,  the  conveyance  by  lease  and  release 
was  introduced,  in  order  to  avoid  the  necessity  of  enrolment,  required 
by  the  statute  of  27  Hen.  VIII,  (2  Black.  Com.  343.)  By  virtue  of  the 
statute  of  uses,  which  we  have  adopted,  (without  the  proviso  in  the 
English  statute  requiring  the  enrolment  of  deeds,)  the  deed  of  bargain 
and  sale,  now  in  use  here,  is  equivalent  to  the  deed  of  feoffment  with 
livery  of  seisin,  (2  Black.  Com.  339,  343,)  and  has,  in  practice,  super- 
seded the  lease  and  release. 

By  the  common  law,  estates  less  than  a  freehold  might  be  created 
■or  assigned,  either  by  deed,  by  writing  without  seal,  or  by  parol  merely. 

By  the  29  Car.  II,  c.  3.  (9th  and  10th  sections  of  our  "act  for  the 
prevention  of  frauds,")  it  was  enacted,  "that  all  leases,  estates,  interest 
of  freehold,  or  terms  of  years,  or  any  uncertain  interests  in  lands,  &c., 
made  or  executed  by  livery  and  seisin  only,  or  by  parol,  and  not  in 
writing,  and  signed  by  the  parties  so  making  and  creating  the  same, 
shall  have  the  force  and  effect  of  leases  or  estates  at  will  only ;  except- 
ing leases  for  three  years  and  less,"  &c. ;  and,  "that  no  leases,  estates, 
or  interests,  either  of  freehold,  or  terms  of  years,"  &c.  "in  any  lands," 
&c.  "shall,  at  any  time  hereafter,  be  assigned,  granted,  or  surrendered, 
unless  it  be  by  deed  or  note  in  writing  signed  by  the  party  so  assigning, 
granting,  or  surrendering  the  same,"  &c. 


Ch.  2)  EXECUTION  OF  DEEDS  277 

Now,  it  is  contended  on  the  part  of  the  defendant,  that  the  common 
law  mode  of  conveyancing  has  been  so  modified  by  this  statute,  as  to 
destroy  the  distinction  between  an  estate  of  freehold,  and  an  estate  less 
than  a  freehold,  as  it  regards  the  mode  of  alienation ;  and  that  either 
may  now  be  conveyed  by  "note  in  writing"  without  seal,  as  well  as  by 
deed. 

No  direct  decision  appears  to  have  been  made  on  this  point;  but  in 
the  case  of  Fry  v.  Philips,  5  Burr.  2827,  and  in  the  case  of  HoUiday  v. 
Marshall,  7  Johns.  211,  it  was  decided,  that  a  written  assignment  of  a 
lease  for  ninety-nine  years  was  valid,  though  not  sealed ;  upon  the  ex- 
press ground  that  it  was  the  sale  of  a  chattel-real,  for  which  the  statute 
of  frauds  requires  only  a  "note  in  writing" ;  plainly  recognizing  the 
distinction  between  a  term  for  years,  and  a  freehold  estate,  as  to  the 
mode  of  conveyance.  .^ 

According  to  Sir  William  Blackstone,  (2  Black.  Com.  309,  &c.,)lsealf 
ing  was  not  in  general  use  among  our  Saxon  ancestors.  Their  custom 
was,  for  such  as  could  write,  to  sign  their  names,  and  to  affix  the  sign 
of  the  cross;  and  those  who  could  not  write,  made  their  mark  in  sign 
of  the  cross,  as  is  still  continued  to  this  day.  The  Normans  used  the 
practice  of  sealing  only,  without  writing  their  names ;  and,  at  the  con- 
quest, they  introduced  into  England  waxen  seals,  instead  of  the  former 
English  mode  of  writing  their  names  and  affixing  the  sign  of  the  cross,  ^ 

it  being  then  usual  for  every  freeman  to  have  his  distinct  and  particu- 
lar seal.  The  neglect  of  signing,  and  resting  upon  the  authenticity  of 
seals  alone,  continued  for  several  ages,  during  which  time  it  was  held, 
bj;  all  the  English  Courts,  that  sealing  alone  was  sufficient  But  in  the 
process  of  time,  the  practice  of  using  particular  and  appropriate  seals, 
was,  in  a  great  measure,  disused ;  and  Sir  William  Blackstone,  (2 
Black.  Com.  310,)  seems  to  consider  the  statute  of  29  Car.  II,  c.  3,  (of 
which  the  9th  and  10th  sections  of  our  statute  of  frauds  are  a 
copy,)  as  reviving  the  ancient  Saxon  custom  of  signing,  without  dis- 
pensing with  the  seal  as  then  in  use,  under  the  custom  derived  from 
the  Normans. 

We  have  the  authori^  of  that  learned  commentator,  unequivocally 
in  favor  of  the  opinion  J  that  a  seal  is  indispensable,  in  order  to  convey 
an  estate  in  fee  simple,  lee  tail,  or  for  life.    2  Black.  Com.  297,  312. 

Such  seems  to  have  been  the  practical  construction,  ever  since  the 
statute  of  Car.  II  in  England,  and  under  our  statute  of  frauds  in  this 
state ;  and  to  decide  now,  that  a  seal  is  unnecessary  to  pass  a  fee,  would 
be  to  introduce  a  new  rule  of  conveyancing,  contrary  to  the  received 
opinion,  and  almost  universal  practice  in  our  community,  and  danger- 
ous in  its  retrospective  operation.  Construing  this  statute  with  refer- 
ence to  the  pre-existing  common  law,  and  the  particular  evil  intended 
to  be  remedied,  Ijhink  the  legislature  did  not  intend  to  dispense  with  a 
seal,  where  it  was  before  required,  as  in  a  conveyance  of  a  freehold 
estate;  but  the  oSject"  was  to  require  such  deeds  to  be  signed  also, 
which  the  Cpurts  had  decided  to  be  unnecessary. 


278  DERIVATIVE  TITLES  (Part  2 

I  construe  this  statute  as  though  the  form  of  expression  had  been 
thus:  "No  estate  of  freehold  shall  be  granted,  unless  it  be  by  deed 
signed  by  the  party  granting ;  and  no  estate  less  than  a  freehold  (ex- 
cepting leases  for  tliree  years,  &c.)  shall  be  granted  or  surrendered, 
unless  by  deed,  or  note  in  writing  signed  by  the  grantor." 

This  venerable  custom  of  sealing,  is  a  relic  of  ancient  wisdom,  and  is 
not  without  its  real  use  at  this  day.     There  is  yet  some  degree  of 
solemnity  in  this  form  of  conveyance.     A  seal  attracts  attention,  and. 
excites  caution  in  illiterate  persons,  and  thereby  operates  as  a  security_ 
against  fraud. 

If  a  man's  freehold  might  be  conveyed  by  a  mere  note  in  writing,  he 
might  more  easily  be  imposed  on,  by  procuring  his  signature  to  such 
a  conveyance,  when  he  really  supposed  he  was  signing  a  receipt,  a 
promissory  note,  or  a  mere  letter. 

The  plaintiff  is  entitled  to  judgment.    Judgment  for  the  plaintiff.^ 

r . 

Quite  generally  the  necessity  for  a  seal  as  requisite  to  the  validity 
of  conveyances  has  been  done  away  with  by  statute.  As  to  this  the 
statutes  of  the  various  states  should  be  consulted.  See  also  Stimson, 
Am.  St.  Law,  §§  1564,  1565.  These  statutes  vary  in  form  and  are 
found  under  various  heads,  as  a  result  of  which  there  has  been  not  a 
little  uncertainty  and  confusion.  See,  for  instance,  Jones  v.  Morris, 
61  Ala.  518;  Rondot  v.  Rogers  Tp.,  99  Fed.  202,  39  C.  C.  A.  462; 
Jerome  v.  Ortman,  66  Mich.  668,  33  N.  W.  759. 

As  to  what  amounts  to  a  sufficient  sealing  see  Lightfoot  and  Butler's 
Case,  2  Leon.  21;  The  Queen  v.  St.  Paul,  Covent  Garden,  7  Q.  B. 
232 ;  National  Provincial  Bank  v.  Jackson,  ZZ  Ch.  D.  1 ;  Warren  v. 
Lynch,  5  Johns.  239;  Pillow  v.  Roberts,  13  How.  472,  14  L.  Ed.  228; 
Bates  v.  Railroad  Co.,  10  Allen,  (Mass.)  251  ;  Pease  v.  Lawson,  ZZ 
Mo.  35;  Barnard  v.  Gantz,  140  N.  Y.  249,  35  N.  E.  430;  Lorah  v. 
Nissley,  156  Pa.  329,  27  Atl.  242.^ 

1  See  Warren  v.  T.ynch,  5  Johns.  (N.  Y.)  239  (ISIO),  as  to  the  origin,  nature, 
and  use  of  seals. — Rep. 

2  "The  ground  of  this  controversy  lies  in  the  fact  that  the  deed  to  Edwards 
purports  to  be  the  deed  of  Agillon  Price,  only.  The  name  of  Lucy  A.  Price 
does  not  appear  in  the  body  of  it,  nor  is  there  anything  in  the  body  of  the 
deed  to  show  that  he  was  a  married  man.  It  concludes,  'In  testimony  where- 
of I  have  hereunto  set  my  hand  and  seal,'  et'c.  The  deed,  however,  is  signed 
by  her  and  her  husband,  and  acknowledged  by  her  on  the  twenty-second  of 
July.  185.'},  and  by  him  on  the  fourteenth  of  September,  1853.  Tlie  wife,  as 
will  be  seen,  owned  the  property  in  her  own  right,  and  the  fact  that  she 
signed  her  name  to  the  deed,  and  acknowledged  it  before  a  proper  officer, 
does  not  make  it  her  gi*ant.  The  party  in  whom  the  title  is  vested  must 
use  appropriate  words  to  convey  the  estate.  Signing,  sealing,  and  acknowl- 
edging a  deed  by  the  wife,  in  which  her  husband  is  the  only  grantor,  vvill_ 
not  convey  her  estate,  Whiteley  v.  Stewart,  63  Rfo.  3G0  dSTB) ;  Agricultural" 
Bank  v.  Rice,  4  How.  225,  11  L.  Ed.  049  (1840) ;  City  of  Cincinnati  v.  New^-ll's 
Heirs'  Lessee,  7  Ohio  St.  37  (1857).  Whether  it  would  be  sufhcient  to  release 
her  dower  in  her  husband's  estate,  we  do  not  determine."  Bradley  v.  Mis- 
souri Pac.  Ry.  Co.,  91  Mo.  493,  4  S.  W.  427  (1886),  per  Black,  J. 


Ch.  2)  EXECUTION  OF  DEEDS  279 

SECTION  3.— ATTESTATION 


At  common  law  attestation  by  witnesses  was  not  necessary  for  any 
purpose  in  connection  with  deeds.  In  the  United  States  not  uncom- 
monly the  statutes  require  attestation  for  some  purpose.  In  Ohio  and 
Connecticut  attestation  by  two  witnesses  is  necessary  to  make  the  deed 
valid  as  a  conveyance,  even  as  between  the  parties.  Langmede  v. 
Weaver,  65  Ohio'St.  17,  60  N.  E.  992;  Winsted  Bank  v.  Spencer,  26 
Conn.  195.  Generally,  however,  where  attestation  is  called  for  by  the 
statute  it  is  considered  necessary  only  as  a  prerequisite  to  effective 
recordinoj. 


SECTION  4.— ACKNOWLEDGMENT 


This,  too,  is  wholly  a  requirement  of  statute,  and  generally  speaking, 
as  in  the  case  of  altestation,  is  not  essential  to  the  validity  of  the  con- 
veyance. In  Ohio  and  Arizona,  however,  it  has  been  held  essential  to 
the  validity  of  the  conveyance.  Hout  v.  Hout,  20  Ohio  St.  1 19;  Lewis 
v.  Herrera,  10  Ariz.  74,  85  Pac.  245,  aff.  208  U.  S.  309,  28  Sup.  Ct. 
412,  52  L.  Ed.  506.  Quite  commonly  acknowledgment  is  made  neces- 
sary to  the  validity  of  conveyances  of  certain  special  interests,  as  home- 
steads, or  conveyances  by  certain  persons,  as  married  women.  Aside 
from  these  the  requirement  goes  merely  to  the  effectiveness  of  the 
recording  or  to  the  matter  of  proof  in  offering  the  instrument  in  evi- 
dence. On  this  and  upon  the  matter  of  Attestation  as  well  the  statutes 
and  decisions  thereunder  should  be  consulted. 


SECTION  5.— DELIVERY 


STANTON  V.  CHAMBERLAIN. 

(Court  of  Common  Pleas,  1588.     Owen,  95.) 

In  an  action  of  debt  upon  a  bond,  upon  non  est  factum  pleaded,  the 

jury  found,  that  tlie  defendant  sealed  the  bond,  and  cast  it  on  the  table, 
and  th^_plaintiff  came  and  took  up  the  bond,  and  carried  it  away  with- 
out saying  any  thing;  and  if  this  shall  amount  to  a  delivery  by  the 
defendant  to  the  plaintiff,  was  the  question.  And  it  was  resolved  by 
all  the  justices,  that  if  the  jury  had  found  that  he  had  sealed  tlie  bond, 


280  DERIVATIVE  TITLES  (Part  2" 

and  cast  it  on  the  table  towards  the  plaintiff,  to  the  intent  that  the  plain-_ 
tiff  should  take  it  as  his  deed,  who  took  the^ond  and  went  away,  that- 
had  been  a  good  delivery;  or  that  the  plaintiff,  after  the  sealing  and 
casting  on  the  table,  had  taken  it  by  the  commandment  or  consent  of 
the  defendant;  but  because  it  is  found  that  the  defendant  only  sealed 
it,  and  cast  it  on  the  table,  and  the  plaintiff  took  it  and  went  away  with 
it,  this  is  not  a  sufficient  delivery,  for  it  may  be  that  he  sealed  it  to  the 
intent  to  reserve  it  to  himself  until  other  things  were  agreed,  and  then 
if  the  plaintiff  take  it,  and  go  away  with  it  without  the  defendant's  con- 
sent, that  will  not  make  it  the  defendant's  deed.  But  it  was  said,  that 
it  might  be  accounted  to  be  the  defendant's  deed,  because  it  is  found 
that  he  sealed  it,  and  cast  it  on  the  table,  and  tlie  plaintiff  took  it,  &c. 
and  it  is  not  found  that  the  defendant  said  any  thing,  and  therefore  be- 
cause  he  did  not  say  any  thing,  it  will  amount  to  his  consent,  Nam  qui 
tacet  consentire  videtur.  But  to  this  it  was  answered,  that  it  is  not 
found  that  the  defendant  was  present  when  the  plaintiff  took  it,  and  if 
the  defendant  had  sealed,  and  cast  the  bond  on  the  table  when  the 
plaintiff  was  not  there,  and  then  the  defendant  went  away,  and  then 
the  plaintiff  came  and  took  it  away,  then  clearly  it  is  not  the  deed  of  the__ 
defendant.* 


BOYD  V.  SLAYBACK. 
(Supreme  Court  of  California,  18S3.     63  Cal.  493.) 

The  action  was  brought  against  Robert  Taggart,  a  minor,  and  against 
O.  M.  Slayback,  as  administrator  of  the  estate  of  Mary  B.  Taggart,  and 
as  guardian  of  Robert  Taggart,  to  quiet  title  to  certain  lands  alleged 
'^  *    J  ^^  have  been  sold  to  the  plaintiff  by  Mary  B.  Taggart.     The  plaintiff 

alleged  that  some  time  subsequent  to  the  execution  and  deliveny  of  the 
deeds  to  him,  by  which  the  lands  were  conveyed,  they  were  left  at  the 
residence  of  Mrs.  Taggart  in  a  tin  box,  and  that  after  her  death  it  was 
discovered  that  the  deeds  had  been  abstracted.  The  defendant  denied 
the  execution  and  delivery.  The  deeds  were  not  recorded: 
ff  .-  ,  Pkr  Curiam.*     *     *     *     f  j^g  judgment  must  be  reversed  for  er- 

ror in  the  charge  to  the  jury.  The  court  below  charged:  "A  grant, 
I  Q  ^  I  duly  executed,  is  presumed  to  have  been  delivered ;  therefore,  if  you 
find  from  the  evidence  that  Mrs.  Taggart  actually  signed  and  acknowl- 
edged the  deeds  in  question,  the  law  will  presume  that  they  were  duly 
delivered,  and  in  order  to  defeat  this  presumption,  the  party  disputing 
the  delivery  must  show,  by  preponderance  of  proof,  that  there  was  no 
delivery." 

This  was  error.     A  deed  takes  effect  only  from  the  time  of  its  de- 
livery.   Without  delivery  of  a  deed  it  is  void.    No  title  will  pass  with- 

8  See  Hughes  v.  Easten,  4  J.  J.  Marsh.  (Ky.)  572,  20  Am.  Dec.  230  (1S30)  j. 
Cannon  v.  Cannon,  26  N.  J.  Eq.  316  (1875). 
*  Only  a  portion  of  the  opinion  is  printed. 


Ch.  2)  EXECUTION  OF   DEEDS  281 

out  delivery.  Dyson  v.  Bradshaw,  23  Cal.  528;  Fitch  v.  Bunch,  30 
Cal.  208;  Barr  v.  Scliroeder,  32  Cal.  610.  It  is  for  the  party  claiming, 
iinde£a  deed  .tQ_£rove  its  delivery.  Sometimes  slight  evidence  will  be 
sufficient  to  support  a  finding  of  delivery,  but  no  legal  presumption  j)f 
delivery  ajrises .  f rprn  the  mere  fact  that  the  instrument  is  "signed.". 
The  acknowledgment  only  proves  that  it  was  signed. 
Judgment  reversed  and  cause  remanded  for  a  new  trial. 


^ 


^  J^  . 


CURRY  V.  COLBURN. 

(Supreme  Court  of  Wisconsin,  1898.     99  Wis.  319,  74  N.  W.  778,  67  Am.  St. 

Rep.  860.) 

Bardeen,  J.  The  plaintiff  brings  this  action  in  ejectment  to  recover 
possession  of  a  tract  of  land  in  the  city  of  Marinette.  The  answer  is 
a  general  denial,  and  a  counterclaim  substantially  to  the  elYect  that 
both  parties  claim  title  from  one  Fairchild,  and  that  the  deed  under 
which  plaintiff  claims  title  was  never  in  fact  delivered  to  him  with 
intent  to  pass  titIe.~~A  reply  asserts  the  validity  of  plaintiff's  deed,  and 
that  defendants  took  title  with  notice  of  the  plaintiff's  rights.  The 
chief  g^uestion  litigated  on  the  trial  was  whether  the  deed  from  Fair-  Y^'^ 

child  to  plaintiff  had  ever  been  delivered.  The  court  found  that  such 
deed  was  handed  by  Fairchild  to  plaintiff  merely  for  examinationand 
inspection,  and  \vas_not,ddiyered  with  the  intention  of  passing  thetitle. 
As  conclusions  of  law,  the  court  found  that  defendants  were  entitled 
t°  Jil^&ni?IlL^ismissin^_the_  complaint  and  canceling  said  deed. 

There  is  ample  evidence  to  support  the  conclusions  arrived  at  by  the 
trial  judge,  and  his  findings  of  fact  cannot  be  disturbed.  The  deed  in 
question  was  not  dated  or  acknowledged.  It  was  simply  handed  to 
plaintiff  by  Fairchild,  at  the  former's  request,  to  be  taken  to  his  law- 
yer for  examination,  and  the  parties  were  to  meet  later  to  complete 
the  bargain.  No  particular  form  is  necessary  to  constitute_the  deliv- 
ery of  the  deed.  ,  It  is  sufficient  when  the  deed  is  executed,  and  the 
minds  of  the  parties  to  it  meet,  expressly  or  tacitly,  in  the  purpose  to 
give  it  present  eft'ect.  Bogie  v.  Bogie,  35  Wis.  659.  Like  every  other 
contract,  there  must  be_a_meetini;_of  the  minds  of  the  contracting  par- 
ties — the  one  to  sell  and  convey,  and  the  other  to  purchase  and  receive 
— before  the  agreement  is  consummated.     Welch  v.  Sackett,  12  Wis.  yU 

243.  The  question  of  delivery  is  largejyoHntention  1  Devlin,  Deeds, 
§  262.  And  a  deed  never  becomes  operative  until  it  is  delivered  with 
the  intent  that  it  shall  become  effective  as  a  conveyance.  Id.  Counsel 
for  the  plaintiff  argue  earnestly  that,  because  the  deed  was  handed  by 
Fairchild  to  the  plaintiff,  this  constituted  a  full  and  complete  delivery, 
and  that  evidence  was  not  admissible  to  show  the  actual  condition 
then  existing.  No  doubt,  a  great  deal  of  discussion  and  unnecessary 
refinement  may  be  found  in  the  books,  bearing  upon  this  question ;  but 
the  main  principle  must  predominate,  that,  to  constitute  a  valid  de- 


282  DERIVATIVE  TITLES  (Part  2 

Hvery  of  a  deed,  the  grantor  must  part  with  his  dominion  overJt,  with_ 
intent_Jo  pass  _  the  title. 

The  ancient  rule  that  a  deed  cannot  be  delivered  in  escrow  to  the 
grantee  in  no  way  conflicts  with  our  conclusions.  A  delivery  in  escrow 
contemplates  complete  loss  of  control  over  the  deed.  Here  the  in- 
complete deed  was  haiided  to  the  grantee,  to  take  to  his  lawyer  for  in- 
spection. By  the  terms  of  their  agreement  of  sale,  a  mortgage  was  to 
be  made,  a  party-wall  contract  was  to  be  executed,  and  part  of  the 
consideration  to  be  paid.  There  was  nothing  in  the  circumstances  to 
show  that  Fairchild  in  any  way  intended  to  part  with  his  dominion 
over  the  deed.  On  the  contrary,  they  all  tend  to  establish  the  conclu- 
sion arrived  at  by  the  trial  court.  That  parol  evidence  is  admissible 
Jo  show  that  a  written  instrument  has  never  been  delivered  so  as_to 
bind  the  parties  thereto  is  established  by  the  following  cases :  Gibbons 
V.  Ellis,  83  Wis.  434,  53  N.  W.  701 ;  Price  v.  Hudson^  125  111.  284, 
17  N.  E.  817;  Brackett  v.  Barney,  28  N.  Y.  333;  Jackson  v.  Roberts, 
1  Wend.  (N.  Y.)  478;  Reichart  v.  Wilhelm,  83  Iowa,  510,  50  N.  W.  19. 
In  Price  v.  Hudson  the  court  remark :  "It  is  not  competent  to  control 
the  effect  of  the  deed  by  parol  evidence,  when  it  has  once  taken  effect 
7^  by  delivery,  but  it  is  always  competent  to  show  that  the  deed,  although 

in  the  grantee's  hands,  has  never  in  fact  been  delivered,  unless  the 
grantor,  or  those  claiming  through  him,  are  estopped  in  some  way  from 
assertmg  the  nondelivery  of  the  deed." 

Not  to  prolong  this  discussion,  we  conclude  that  the  decision  of 
the  trial  judge  upon  the  law  finds  ample  support  both  upon  principle 
and  authority. 

By  the:  Court.    The  judgment  of  the  circuit  court  is  affirmed.^ 

s  "The  miestiyn  of  rlelivery  is  a  mixed  question  of  la^  and  fact,  and  it  is 
held  tuaniie  delivery  oi"a  flPM  may  be  uiiifle  by  acts  alone,  th'ai:  is,  by  do- 
in^  soiiietbiiig  and  saying  nothing;  or  by  words  alone,  that  is,  by  saying 
something  and  doing  nothing;  or  it  may  be  delivered  by  both  acts  and  words. 
It  must,  however,  be  delivered  by  something  answering  to  the  one  or  the 
other,  or  both,  and  with  the  intent  thereby  to  give  effect  fo  the  deed.  Roun- 
tree  v.  Smith,  152  111.  49.3  [38  N.  E.  6S0  (1804)].  In  the  case  at  bar  the  deed 
was  handed  to  Charles  S.  Owen  by  Mr.  Lewis,  and  after  it  had  been  signed 
and  acknowledged  by  Mrs.  Owen  was  placed  by  Owen  in  his  private  bo.x^,  where 
it  remained  until  after  his  death.  If  these  were  the  only  facts  which  appeared 
iu  evidence  bearing  upon  the  question  of  delivery,  it  might  well  be  held  that 
the  deed  had  been  delivered.  It  appears,  however,  that  the  deed  was  made, 
not  with  the  intention  that  it  should  immediately  take  effect  and  pass  the 
title  to  said  farm  to  Charles  S.  Owen,  but  that  it  should  only  take  efteet  in 
case  Chartes  S.  Owen  survived  his  wife,  and  in  the  event  that  his  wife 
should  survive  him  it  was  never  to  take  efiect  but  was  to  be  destroyed.  A 
deed  must  take  effect  immediately  upon  its  e.xecution  and  delivery  to  tEe 
gntntee  Ar  It  VVlll.no!  tAke'eiierT  ai  all.  U  lisoll  V.  Wilson,  fshl'lll.  5^ 'Hi 
N.  E.  lOUT.  49  Am.  St.  Itep.  i'td  (l^\ib)\ ;  Wilenou  v.  Handlon,  207  111.  104 
[e9  N.  E.  892  (1904)].  We  think  it  clear  that  the  parties  to  this  deed  intend- 
ed it  to  oiterate  as  a  will,  and  that  the  possession  of  the  deed  by  Charles 
S.  Owen  did  not  have  the  effect  to  vest  the  title  to  said  farm  in  liim.  It  is 
urged,  however,  that  the  deed  was  delivered  into  the  hands  of  Charles  S. 
Owpn,  and  it  is  said  such  delivery  had  the  effect  to  invest  him  with  the  title 
to  the  premises  regardless  of  the  intention  of  the  parties,  on  the  ground  that 
a  deed  cannot  be  transferred  fi'om  the  possession  of  the  grantor  to  the  gran- 


Ch.  2)  EXECUTION   OF   DEEDS  283 

TISHER  V.  BECKWITH. 

(Supreme  Court  of  Wisconsin,  1872.     30  Wis.  55,  11  Am.  Rep.  546.) 

Appeal  from  the  Circuit  Court  of  Waupaca  County. 

Action  against  defendants,  together  with  the  sheriff  and  former 
sheriff  of  Waupaca  county,  to  restrain  said  officers  from  executing 
a_deed_gfj:ertain  mortgaged  premises  sold  under  a  judgment  of  fore- 
closure to_the  defendants,  and  to  compel  the  defendants  to  convey 
to  respondent  theii^  title  acquired  under  such  sale. 

It  appeared  in  evidence  that  the  plaintiff,  Tisher,  who  was  in  pos- 
session of  the  premises  in  dispute  as  a  homestead  under  a  patent  from 
the  United  States,  liad  partially  executed  but  never  delivered  a  deed 
of  the  premises  to  his  son  Charles  H.  Tisher.  Tliis  deed,  which  was 
unstamped  and  bore  no  consideration  or  date,  was  placed  by  Tisher 
in  a  trunk  and  locked  up,  the  key  being  kept  by  his  wife  in  a  small 
box  in  another  trunk  which  was  locked.  The  son  kept  his  papers  in 
the  same  trunk  in  which  the  deed  was  placed,  but  had  no  key.  De- 
fendants claimed  the  premises  under  a  sale  by  virtue  of  a  judgment 
of  foreclosure  of  certain  mortgages  executed  by  the  said  Charles  H. 
Tisher.  The  court  found  as  facts  that  the  pretended  deed  of  Tisher 
to  his  son  was  never  fully  executed  and  delivered,  but  that  it  was 
purloined  from  Tisher  without  his  knowledge  or  consent,  and  that  the 
defendants  had  due  notice  of  the  plaintiff's  claim  to  the  premises,  as 

tee  without  vesting  title  In  tlie  grantee.  We  do  not  so  understand  the  law. 
While  a  deed  tiiunot  be  delivered  to  the  granree  in  escrow,  nunieruus  cases 
have  been  decided  by  this  court  where  deeds  have  been  held  nut  to  have 
been  delivered  so  as  to  pass  title  although  the  possession  of  the  deed  passed 
froui  the  grantor  to  the  grantee.  In  Rountree  v.  Snnth,  supra,  the  deed 
was  delivered  by  the  grantor  to  the  grantee  and  recorded  with  the  kr)()\vl- 
edge  and  consent  of  the  grantor,  and  yet  it  was  held  that  It  was  not  deliv- 
ered to  the  grantee  so  as  to  vest  her  with  the  title  to  the  premises  des'-rilied 
in  the  deed.  See,  also,  Bovee  v.  Hinde,  135  111.  137  [25  N.  E.  C94  (1890)] ;  Hayes 
V.  r.o.vlan,  141  111.  400  \:W  N.  K.  1041,  :«  Am.  St.  Re]..  :',2G  (IM).!)!;  Oliver 
V.  Oliver,  140  III.  542  [.%  N.  E.  935  (1894)1;  Wilson  v.  Wilson,  supra;  Hollen- 
beck  v.  Hollenbeck,  185  111.  101  [57  N.  E.  30  (1900)).  In  the  Wilson  Case 
the  deed  was  placed  in  the  hands  of  one  of  the  grantees  with  the  under- 
standing if  the  grantor  did  not  call  for  it  it  was  to  be  placed  of  record  after 
his  death.  The  court,  on  page  574  [of  158  111.,  on  page  1008  of  41  N.  E.I, 
said  :  'The  mere  placing  of  the  deed  in  the  hands  of  one  of  the  grantees 
did  not,  of  itself,  necessarily  constitute  a  delivery.  In  such  a  case  t lie  ni- 
quiry  is,  what  was  the  intention  of  the  parties  at  the  time?  and  that  inten- 
tion, when  asceitained,  must  govern.'  And  In  Oliver  v.  Oliver,  supra,  on 
page  547  [of  149  111.,  on  page  956  of  36  N.  E.],  it  was  said:  'The  fact  that 
a  grantee  in  a  deed  may,  after  the  execution  of  the  instrument,  take  it  into 
his  hands  does  not,  of  itself,  establish  a  delivery.'  And  in  Hollenbeck  v. 
Hollenbeck,  supra,  on  page  103  [of  185  111.,  on  page  37  of  57  N.  E.]:  'The 
Djere  iilacini':  of  a  deed -in  the  hands  of  the  grantee  does  nut  conclusively  es- 
tablish a  delivery  thereof,  within  the  legal  meainng  or  tuat  word.  Delivery 
is'ji  (luestiun  oi'  intent,  and  dcpeiMis  upon  whether  the  parties'at  the  tjine 
meant  it  to  he  a  delivery  to  t;'K-e  ^'itert-  at  once.' '^  Elliott  v.  Murray.  225  III. 
fO'i,  8(rX'.  E.  ?t  (1907),  per  Hand,  J.  iiee,  also,  Kavauaugh  v.  Kavanaugh, 
260  111.  179,  103  N.  E.  65  (1013);  Elliott  v.  Merchants'  Bank  &  Trust  Co., 
21  Cal.  App.  536,  132  Pac.  280  (1913). 


284  •  DERIVATIVE  TITLES  (Part  2 

well  as  his  son's  inability  to  convey.  As  a  conclusion  of  law  the  court 
found  that  Tisher  was  the  owner  in  fee  of  the  premises;  that  the 
pretended  deed  to  his  son  was  null  and  void;  that  the  mortgages 
executed  by  the  son  were  null  and  void,  as  well  as  the  certificate 
of  sale  issued  to  defendants  under  the  foreclosure  sale ;  that  the  sher- 
iffs should  be  enjoined  from  executing  a  deed  on  said  certificate  that 
the  defendants  should  be  restrained  from  disposing  of  the  certificate, 
and  that  they  should  release  to  the  plaintiff  all  claims  to  the  premises  in 
question  by  virtue  of  said  sale  and  certificate.  Judgment  being  en- 
tered in  accordance  with  such  findings  defendants  appealed, 

Dixon,  C.  J.  The  fourth  finding  of  fact  by  the  court  below  is  in 
these  words:  "That  the  pretended  deed  from  said  plaintiflt  and  his 
wife  to  Charles  H.  Tisher  was  never  fully  executed  and  was  never 
delivered,  and  that  the  same  was  purloined  or  stolen  from  said  plain- 
tiff without  his  knowledge,  consent  or  acquiescence."  If  this  finding 
be  correct  and  sustained  by  the  evidence,  it  obviously  puts  an  end  to  all 
claim  of  title  to  the  land  on  the  part  of  the  defendants.  It  has  beef 
held  by  this  court  that  the  fraudulent  procurement  of  a  deed  depositcdl 
as  an  escrow  from  the  depository  by  the  grantee  named  therein,  willl 
not  operate  to  pass  the  title,  and  a  subsequent  purchaser  of  such] 
grantee,  for  valuable  consideration  without  notice,  derives  no  title 
thereby  and  will  not  be  protected.  Everts  v.  Agnes  and  Swift,  4 
Wis.  343,  65  Am.  Dec.  314;  Same  v.  Same,  6  Wis.  453.  It  is  ess 
tial  to  the  validity  of  a  deed  that  it  should  be  delivered,  and  such  de-j 
Hyery  to  be  valid  must  be  voluntary^  that  is,  made  with  the  assent  f 
and  in  pursuance  of  an  intention  on  the  part  of  the  grantor  to  de- 
liver it,  and  if  not  so  delivered  it  conveys  no  title.  A  deed  pur- 
loined or  stolen  from  the  grantor,  or  the  possession  of  which  was 
fraudulently  or  wrongfully  obtained  from  him  without  his  knowl- 
edge, consent  or  acquiescence,  is  no  more  effectual  to  pass  title 
to  the  supposed  grantee,  than  if  it  were  a  total  forgery,  and  an  in- 
strument of  the  latter  kind  had  been  spread  upon  the  record. 

The  only  question. which  can  ever  arise  to  defeat  the  title  of  the  sup=^ 
posed  grantor  in  such  cases,  is  whether  he  was  guilty  of  any  negli- 
_gence  in  having  made,  signed  and  acknowledged  the  instrument,  and 
in  suffering  it  to  be  kept  or  deposited  in  some  place  where  he  knew 
the  party  named  as  grantee  might,  if  so  disposed,  readily  and  without 
trouble  obtain  such  wrongful  possession  of  it  and  so  be  enabled  to  de- 
ceive and  defraud  innocent  third  persons.  It  might  possibly  be  that 
a  case  of  that  kind  could  be  presented  where  the  negligence  of  the 
supposed  grantor  in  this  respect  was  so  great,  and  his  inattention  and 
carelessness  to  the  rights  of  others  so  marked,  that  the  law  would 
on  that  account  estop  him  from  setting  up  his  title  as  against  a  bona 
fide  purchaser  for  value  under  such  deed.  See  Everts  v.  Agnes  et  al., 
6  Wis.  453.  There  are  some  facts  and  circumstances  in  this  case 
strongly  suggestive  of  such  a  defense,  and  were  it  not  for  the  fact 
found  by  the  court  that  the  deed_  was  never  fully  executed,  and  the 


Ch.  2)  EXECUTION   OF  DEEDS  285 

further  fact  fully  established  in  evidence  that  it  was  unstamped  when 
jput  away  by  the  plaintiff  in  the  trunk  in  the  manner  described  by  him- 
self  and  the  other  witnesses,  we  might  possibly  have  some  hesitation 
about  affirming  the  judgment  of  the  court  below  on  this  ground. 

It  appears  from  the  plaintiff's  own  testimony  that  the  trunk  was 
easily  accessible  to  his  son,  the  person  named  in  the  instrument  as  gran- 
tee, for  he  says  that  his  son,  who  was  acting  as  town  clerk  at  the  time, 
kept  his  papers  there,  although  he  also  testifies  that  the  son  had  no 
key  to  the  trunk,  but  that  his,  plaintiff's,  wife  kept  the  key  in  a  smaU^ 
box  in  another  trunk  belonging  to  her  and  which  was  locked.]  A^eed 
fully  executed  and  which  had  been  so  kept  or  deposited  would  seem 
to  furnish  some  evidence,  more  or  less  strong,  of  negligence  on  the  part 
of  the  grantor.     It  would  be  unlike  the  case  of  a  deed  executed  and 
deposited  in  escrow,  which  this  court  said  was  recognized  as  a-  legitL:. 
mate  business  transaction.  ;  But  the  finding  is  that  the  deed  was  not! 
fully  executed  nor  was  it  stamped,  and  the  question  is,  whether  it  was  \ 
negligence  so  to  keep  such  an  instrument^  and  we  are  not  prepared  to  I 
say  that  it  was.    It  occurs  to  us,  as  it  probably  did  to  the  court  below,J 
that  most  men  of  ordinary  care  and  circumspection  would  not  have 
regarded  this  as  unsafe  or  imprudent  or  careless.    An  instrument  com- 
plete in  all  its  parts  and  lacking  nothing  to  give  it  validity  but  deliv- 
ery to  the  person  named  in  it  as  grantee,  might  excite  the  cupidity  of 
such  person  to  take  wrongful  possession  of  it  when  frequent  oppor- 
tunity for  that  purpose  was  afforded,  but  that  an  unfinished  instrument, 
one  partially  executed  and  not  ready  for  delivery,  would  present  the 
same  temptation  would  hardly  suggest  itself  to  the  mind  of  any  ordi- 
narily prudent  and  cautious  man.    It  would  hardly  occur  to  such  a  man 
that  such  an  instrument  would  be  purloined  or  wrongfully  taken,  when  * 

to  give  it  any  apparent  validity  in  the  hands  of  the  supposed  grantee 
the  crime  of  forgery^rnust  also  be  committed. 

It  is  for  these  reasons  that  this  court  is  of  opinion  that  the  facts 
proved  were  not  sufficient  to  take  the  case  out  of  the  general  rule  of 
law  above  stated,  even  taking  the  most  liberal  view  of  the  facts  in 
favor  of  the  defendants.  There  are  cases,  however,  the  tendency  of 
which  would  seem  to  be  that  the  failure  of  the  plaintiff  to  suspect  and 
treat  his  son  as  a  knave,  thief,  or  criminal,  could  not  be  attributed  to 
him  as  negligence.  See  the  able  and  well  considered  opinion  of  the 
court  by  Christiancy,  J.,  in  Burson  v.  Huntington,  21  Mich.  415,  4  Am. 
Rep.  497,  a  case  involving  the  same  question  with  respect  to  the  de- 
livery of  a  negotiable  promissory  note  and  which,  not  having  been 
delivered  by  the  maker  but  stolen  or  wrongfully  taken  and  put  in  cir- 
culation by  the  payee,  was  held  void  in  the  hands  of  a  bona  fide  holder 
for  value.  The  same  case  also  makes  a  distinction  between  a  note 
or  other  instrument  so  obtained  and  one  deposited  in  escrow  and 
afterwards  fraudulently  delivered  by  the  depositors,  holding  that  in 
the  latter  case  the  maker  would  be  bound  as  against  an  innocent  holder 
for  value,  on  the  ground  of  the  trust  or  confidence  reposed  by  him 


286  DERIVATIVE  TITLES  (Part  2 

in  the  depository,  and  upon  the  principle  that,  when  one  of  two  inno;;_ 
cent  persons  must  suffer  by  the  acts  of  a  third,  he  who  has  enabled^ 
such  third  person  to  occasion  the  loss  must  sustain  it.  Upon  the  same 
question  also  of  negligence,  see  Wait  v.  Pomeroy,  20  Mich.  425,  4  Am. 
Rep.  395.  It  only  remains,  therefore,  to  be  inquired  whether  the  evi- 
dence given  on  the  trial  was  such  as  to  sustain  the  finding  of  the  court 
above  quoted. 

We  are  of  opinion  that  the  preponderance  of  testimony  was  de- 
cidedly in  favor  of  the  finding.  If  we  omit  from  our  consideration 
entirely  the  testimony  of  the  plaintiff,  which  was  clear  and  strong  and 
whose  credibility  and  fairness  we  discover  nothing  to  impeach,  except 
the  mere  fact  of  his  interest,  the  finding  was  fully  sustained  by  the 
testimony  of  the  witnesses,  Quimby,  Wooden  and  Mrs.  Scheppe,  who 
corroborated  the  plaintiff"  in  almost  every  particular  to  which  he  testi- 
fied. Opposed  to  the  testimony  of  these  witnesses  was  only  that  of  the 
witness  Hoxie,  who  testified  merely  to  certain  admissions  and  conduct 
of  the  plaintiff  calculated  to  induce  the  witness  to  believe  that  the 
plaintiff  had  conveyed  the  land  to  his  son.  In  this,  Hoxie  was  directly 
contradicted  by  the  plaintiff,  and  there  again  the  plaintiff  was  corrobo- 
rated by  the  witness  Wooden,  who  was  present  on  the  occasion  spoken 
of  by  Hoxie.  In  every  view  in  which  the  testimony  presents  itself  to 
our  minds,  we  are  constrained  to  say  that  this  finding  of  the  court 
below  was  correct,  and  consequently,  that  the  judgment  must  be 
affirmed. 

By  THE  Court.    Judgment  affirmed,* 

PARROTT  v.  AVERY. 

(Supreme  Judicial  Court  of  Massachusetts.  1S9.3.     159  ^rass.  594,  35  N.  E.  94, 
22  L.  R.  A.  153,  38  Am.  St.  Rep.  465.) 

Writ  of  entry,  to  recover  possession  of  a  parcel  of  land  in  Great 
Barrington.  J'lea,  nul  disseisin.  The  case  was  submitted  to  the  Supe- 
rior Court,  and,  after  judgment  for  the  demandants,  to  this  court,  on 
appeal,  upon  agreed  facts,  in  substance  as  follows. 

The  tenant  claimed  title  to  the  demanded  premises  by  virtue  of  a 
deed  to  him  of  the  same  from  his  grandfather,  one  Miles  Avery,  de- 
ceased, dated,  January  21,  1888,  the  consideration  for  which  was  ex- 
pressed to  be  "love  and  affection,"  which  was  executed  in  the  presence 
of  a  witness,  and  which  was  recorded  on  January  31,  1893;  and  also 
under  the  second  clause  of  the  will  of  Miles  Avery,  which  devised  to 

6  See  Gamer  v.  Risinger,  35  Tex.  Civ,  App.  378,  81  S.  W.  343  (1904),  where 
the  grantors  prepared  a  deed  and  placed  it  in  a  drawer  of  the  family  organ, 
where  the  grautore  were  accu.stonied  to  keep  tlieir  valuahle  papers.  The 
grantee,  a  stepdaughter  of  one  of  the  grantors  and  a  member  of  the  house- 
hold, took  the  deed  without  the  knowledge  of  the  grantors,  and  conveyed 
the  property  to  an  innocent  purchaser. 


Ch.  2)  EXECUTION   OF  DEEDS  287 

the  tenant,  among  other  things,  "my  chest  and  its  contents  except  the 
bank-books." 

The  deed  was  duly  executed  by  Miles  Avery  at  or  about  the  time 
of  its  date,  and  is  supposed  to  have  been  placed  by  him  with  other 
valuable  property  in  a  certain  chest  owned  by  him,  which  was  the 
chest  bequeathed  to  the  tenant  by  the  second  clause  of  the  will.  The 
will,  which  was  dated  May  25,  1889,  was  duly  proved  and  allowed, 
and  the  executor  of  the  will,  agreeably  to  its  provisions,  delivered  the 
chest  and  its  contents,  including  the  deed,  which  was  found  in  the 
chest,  to  the  tenant,  on  January  28,  1893. 

Miles  Avery  retained  possession  of  the  demanded  premises,  and 
of  the  chest  and  its  contents,  up  to  the  time  of  his  death,  which  oc- 
curred on  May  10,  1891. 

The  demandants^  claimed  title  to  _the_  premises  under  the  seventh 
clause  of  the  will,  which  was  as  follows:  "All  the  residue  and  remain^ 
der  qI  my  estate,  both  real  and  personal,  not  otherwise  disposed  of, 
shall  be  equally  djvjdpd  among  all  of  ray  grandchildren  then  living." 

If  the  tenant  had  title  to  the  demanded  premises,  judginent  was  to 
be  entered  in  his  favor;  otherwise,  judgment  was  to  be  entered  for 
the  demandants. 

Allen,  J.f  1.  The  agreed  facts  fail  to  shovy  a  deliv;ery  of  the  deed 
m  the  grantor's  lifetime.  The  grantor  retained  control  of  the  deed 
and  of  the  land.  There  was  no  prior  bargain  with  the  grantee,  and  no 
indebtedness  to  him,  nor  relation  of  trust  towards  him.  He  had  no 
knowledge  of  the  execution  of  the  deed.  The  only  consideration  was 
love  and  affection.  The  deed  was  not  recorded  during  the  grantor's 
lifetime.  There  was  no  oral  declaration  by  the  grantor  that  he  meant  to 
have  it  take  effect  at  once.  In  short,  there  was  nothing  tending  to  show 
a  delivery  of  the  deed  except  the  bare  fact  that  it  was  executed  in  the 
presence  of  a  witness.  Tlie_question  of  delivery  is  a  question  of  fact, 
and  delivery  in_the  grantor's  lifetime  must  be  proved.  There  must 
have  been  an  intention  that  it  should  operate  as  a  present  conveyance 
of  title.  A  finding  of  the  delivery  of  the  deed  would  not  be  warranted 
on  the  agreed  facts.  Stevens  v.  Stevens,  150  Mass.  557,  23  N.  E.  378; 
Shurtleff  v.  Francis,  118  Mass.  154;  Hawkes  v.  Pike,  105  Mass.  560, 
7  Am.  Rep.  554;  Brabrook  v.  Boston  Five  Cents  Savings  Bank,  104 
Mass.  228,  232,  6  Am.  Rep.  222 ;  Chase  v.  Breed,  5  Gray,  440 ;  Younge 
V.  Guilbeau,  3  Wall.  636,  641,  18  L.  Ed.  262 ;  3  Washb.  Real  Prop. 
(5th  Ed.)  577  et  seq.  There  were  no  acts  or  declarations  of  the  grantor 
sufficient  to  show  an  intent  to  treat  it  as  delivered,  or  circumstances 
such  as  were  f ouncT  to  He  sufficient  in  Lowd  v.  Brigham,  154  Mass. 
108,  113,  114,  26  N.  E.  1004,  and  cases  there  cited,  and  in  Regan  v. 
Howe,  121  Mass.  424.     *     *     * 

Judgment  for  demandants  affirmed.' 

t  A  portion  of  the  opinion  is  omitted. 

7  See  Taylor  v,  Taylor  (R.  I.)  90  AtL  746  (1014),  in  wliirh  the  erantor,  a 
short  time  before  her  death,  called  her  son,  the  grantee,  to  her  bedside,  and 


288  DERIVATIVE  TITLES  (Part  2 

DOE  ex  dem.  GARNONS  v.  KNIGHT. 
(Court  of  King's  Bench,  1826.    5  Barn.  &  C.  671.) 

This  was  an  ejectment  brought  to  recover  possession  of  certain  mes- 
suages and  lands  in  the  county  of  Flint.  The^  lessor  of  the  plaintiff 
claimed  the  property  as  mortgagee  under  a  deed  purporting  to  be  ex- 
ecuted by  W.  Wynne,  deceased.  At  the  trial  before  Garrow,  B.,  at  the 
summer  assizes  for  the  county  of  Stafford,  1825,  the  principal  questio^i 
turned  on  the  validity  of  that  deed ;  and  the  following  appeared  to  be 
the  facts  of  the  case :  Wynne  was  an  attorney  residing  at  Mold  in 
Flintshire,  and  had  acted  in  that  character  for  Gamons  the  lessor  of 
the  plaintiff,  who  resided  at  a  distance  of  about  three  miles  from  Mold, 
Wynne's  sister  and  niece  lived  in  a  house  adjoining  to  his  own  at  Mold. 
On  the  12th  of  April,  1820,  about  six  o'clock  in  the  evening,  Wynne 
called  at  his  sister's  house,  his  niece  then  being  tlie  only  person  at 
home,  and  asked  her  to  witness  or  sign  some  parchment.  He  produced 
the  parchment, 'placed  it  on  the  table,  signed  his  name,  and  then  said, 
"I  deliver  this  as  my  act  and  deed,"  putting  his  finger  at  the  same  time 
on  the  seal ;  the  niece  signed  her  name,  and  he  took  it  away  with  him. 
The  deed  remained  on  the  table  until  he  took  it  away.  He  did 
not  mention  to  his  niece  the  contents  of  the  deed,  or  the  name: 
of  Mr.  Garnons.  The  niece  had  no  authority  from  Mr.  Garnons  to 
receive  any  thing  for  liim.  It  was  proved  by  Miss  Elizabeth  Wynne, 
the  sister  of  Wynne,  that  in  April,  1820,  (but  whether  before  or  after 
the  execution  of  the  deed  as  above  mentioned  did  not  distinctly  appear,) 
he  brought  her  a  brown  paper  parcel,  and  said,  "Here,  Bess,  keep  this ; 
it  belongs  to  Mr.  Garnons."  Nothing  further  passed  at  this  time ;  but 
a  few  days  after  he  came  again,  asked  for  the  parcel,  and  she  gave  it 
to  him;  he  returned  it  back  to  her  again  on  the  14th,  15th,  or  16th  of 
April,  saying,  "Here,  put  this  by."  When  she  received  it  the  second 
time,  it  was  less  in  bulk  than  before.  Wynne  died  in  August,  1820. 
After  his  funeral,  she  delivered  this  parcel  to  one  Barker  in  the  same 
state  in  which  she  received  it  from  her  brother.  Barker,  who  was  an 
'intimate  friend  of  Wynne,  stated,  that  the  latter  in  July,  1814,  sent  for 
him,  and  told  him  that  he  had  received  upwards  of  £26,000.  upon  Mr. 
Garnons'  account;  and  after  taking  credit  for  sums  he  had  paid,  and 
placed  out  for  Mr.  Garnons,  he  was  still  indebted  to  him  in  more  than 
£13,000.  He  then  asked  the  witness,  if.  he,  as  his  (Wynne's)  friend, 
would  see  Mr.  Garnons  to  explain  the  circumstances.  The  witness 
consented,  and  Wynne  then  made  a  statement  of  his  property ;  by 
which  it  appeared  that  after  payment  of  his  debts,  including  the  £13,- 
000.,  he  would  have  a  surplus  for  himself  and  family  of  £8,000.  at  the 

gave  to  him  a  box  and  the  key  thereto,  sayin?,  "Everything  in  that  box  is 
yours."  Among  the  papers  in  the  box  was  a  deed  bearing  date  twelve  years 
earlier,  the  delivery  of  which  the  court  was  called  upon  to  determine.  In  the 
box  were  also  the  grantor's  will  and  some  insurance  policies  which  belonged 
to  the  grai^tee's  sisters. 


Ch.  2)  EXECUTION   OF  DEEDS  289 

least.  He  desired  the  witness  to  tell  Garnons  that,  although  he  could 
not  pay  him  at  that  time,  he  would  take  care  to  make  him  perfectly 
secure  for  all  the  monies  due  from  him.  Upon  this  being  communi- 
cated to  Garnons  he  desired  Barker  to  assure  Wynne,  that  he  would 
not  then  distress  him,  or  expose  his  circumstances,  but  he  expected  that 
he  would  provide  him  securities  for  the  money  he,  Wynne,  owed  him. 
This  was  communicated  to  Wynne,  who  expressed  great  gratitude  to 
Garnons,  and  said,  he  would  take  care  to  make  him  perfectly  secure. 
After  the  funeral  of  Wynne,  his  will  was  produced,  and  with  it  was  a 
paper  in  his  own  hand-writing,  containing  a  statement  of  his  prop- 
erty, and  a  list  of  various  debts  secured  by  mortgage  or  bond,  and 
among  others,  under  the  title  "mortgage,"  there  was  stated  to  be  a  debt 
to  Mr.  Garnons  for  £10,000.  Miss  Wynne  soon  after  delivered  to  the 
witness,  Barker,  a  brown  paper  parcel  sealed,  but  not  directed.  Upon 
this  being  opened,  there  was  inclosed  in  it  another  white  paper  parcel 
directed,  in  the  hand-writing  of  Wynne,  "Richard  Garnons,  Esq." 
Within  it  was  a  mortgage  deed,  (the  same  that  was  witnessed  by 
Wynne's  niece,  as  before  stated,)  from  Wynne  to  Garnons  for  £10,000. 
There  was  also  within  the  white  parcel,  a  paper  folded  in  the  form  of 
a  letter  directed  in  the  hand-writing  of  Wynne  to  Mr.  Garnons.  That 
contained  a  statement  of  the  account  between  Wynne  and  Garnons, 
and  £10,000.,  part  of  the  balance  due  from  Wynne  to  Garnons,  was 
stated  to  be  secured  upon  Wynne's  property.  The  mortgage  deed 
found  in  the  parcel  was  then  delivered  to  Garnons.  It  was  a  mortgage 
of  all  Wynne's  real  estates. 

It  was  contended  on  the  part  of  the  defendant  that  nothing  passed 
by  the  deed,  inasmuch  as  there  had  been  no  sufficient  delivery  of  it  to 
the  mortgagee,  or  to  any  person  on  his  behalf,  to  make  it  valid ;  and, 
secondly,  because  it  was  fraudulent  and  void  against  the  creditors  of 
the  grantor  under  the  statute  13  Eliz.  c.  5.  The  learned  Judge  over- 
ruled the  objections,  and  the  defendant  then  proved  that  Mr.  Wynne, 
in  May,  1820,  had  delivered  to  him  a  bond  and  mortgage  of  his  real 
estates,  to  secure  money  due  from  Wynne  to  him ;  and  that  by  his  will 
he  devised  all  his  estates  to  the  defendant.  Knight,  in  trust  to  sell  and 
pay  his  debts.  It  was  further  proved,  that  about  the  5th  of  April  a 
skin  of  parchment  with  a  £12.  stamp  was  prepared  by  Wynne's  order, 
and  for  a  few  days  he  remained  in  his  private  room,  with  the  door  shut. 
A  clerk  entered  the  room,  and  found  him  writing  upon  a  parchment ; 
he  afterwards  locked  the  door.  There  was  no  draft  of  the  mortgage  in 
the  office,  and  he  never  mentioned  it.  The  whole  of  the  deed  was  in 
Wynne's  own  handwriting.  He  had  three  clerks,  and  deeds  were  in 
tlie  usual  course  of  business  executed  in  the  office,  and  witnessed  by  him- 
self and  his  clerks.  The  learned  Judge  told  the  jury,  that  the  first 
question  for  their  consideration  was,  whether  the  mortgage  to  the  les- 
sor of  the  plaintiff  was  duly  executed  by  Wynne  the  deceased ;  but  that 
if  tliey  thought  it  was  originally  well  executed,  the  question  for  their 
Aig.Pkop. — 19 


290  DERIVATIVE  TITLES  (Part  2 

consideration  would  be,  whether  the  dehvery  to  Mrs.  Elizabeth  Wynne 
was  a  good  delivery;  and  he  told  them  he  was  of  opinion,  that  if, 
after  it  was  formally  executed,  Mr.  Wynne  had  delivered  it  to  a  friend 
of  Mr.  Garnons,  or  to  his  banker  for  his  use,  such  delivery  would 
have  been  sufficient  to  vest  in  Mr.  Garnons  the  interest  intended  to  be 
conveyed  to  him  under  it;  and  the  question  for  them  to  decide  was, 
whether  the  delivery  to  Miss  Wynne  was,  under  all  the  circumstances 
of  the  case,  a  departing  with  the  possession  of  the  deed,  and  of  the 
power  and  control  over  it,  for  the  benefit  of  Mr.  Garnons,  and  to  be 
delivered  to  him  either  in  Mr.  Wynne's  Hfetime  or  after  his  death ;  or 
whether  it  was  delivered  to  Miss  Wynne  merely  for  safe  custody  as  the 
depository,  and  subject  to  his  future  control  and  disposition.  If  they 
were  of  opinion  that  it  was  delivered  merely  for  the  latter  purpose, 
they  should  find  for  the  defendant,  otherwise  for  the  plaintiff.  A  ver- 
dict having  been  found  for  the  plaintiff,  Campbell  in  last  Michaelmas 
term  obtained  a  rule  nisi  for  a  new  trial. 

BaylEy,  J.*  There  were  ^^vo  points  in  this  case.  One,  whether  there 
was  an  effectual  delivery  oFa  mortgage  deed,  under  which  the  lessor 
of  the  plaintiff  claimed,  so  as  to  make  the  mortgage  operate.  The  oth- 
er,  whether  such  mortgage  was  or  was  not  void  against  creditors  or  a 
subsequent  mortgagee.  Upon  the  first  point  the  _f  acts  were  shpjtlythese^ 
In  July,  1814,  Mr.  Wynne,  an  attorney,  who  was  seised  in  fee  of  the 
premises  in  question,  made  a  communication  through  a  friend  to  the  les- 
sor of  the  plaintiff  who  was  a  client,  that  he  (Wynne)  had  misapplied 
above  £10,000.  of  his  (Garnons')  money.  Garnons  answered,  he  relied 
and  expected  that  Wynne  would  provide  him  securities  for  his  money ; 
and  Wynne  said  he  would  make  him  perfectly  secure,  and  he  should  be 
no  loser.  On  the  12th  of  April,  1820,  Wynne  went  to  his  sister's,  who, 
with  her  niece,  lived  next  door  to  him,  and  produced  the  mortgage  in 
question,  ready  sealed.  He  then  signed  it  in  the  presence  of  the  niece, 
^  and  used  the  words :  "I  deliver  this  as  my  act  and  deed."  The  niece, 
by  his  desire,  attested  the  execution,  and  then  Mr.  Wynne  took  it  away. 
The  niece  knew  not  what  the  deed  was,  nor  was  Mr.  Garnons'  name 
mentioned.  In  the  same  month  of  April  he  delivered  a  brown  paper 
parcel  to  his  sister,  saying,  "Here,  Bess,  keep  this ;  it  belongs  to  Mr. 
Garnons."  He  came  for  it  again  in  a  few  days,  and  she  gave  it  him ; 
and  he  returned  it  on  the  14th,  15th,  or  16th  of  April,  saying,  "Here, 
put  this  by."  It  wag,  then  less  in  bulk  than  before,  and  contained  the 
mortgage  in  question.  Mr.  W)mne  died  the  10th  of  August  following, 
and  after  his  death  the  parcel  was  opened,  and  the  mortgage  found. 
Mr.  Garnons  knew  nothing  of  the  mortgage  until  after  it  was  so  found. 
My  Brother  Garrow,  who  tried  the  cause,  left  two  questions  to  the 
Y^  jury;  one,  whether  the  mortgage  was  duly  executed ;  the  other,  wheth- 

er the  delivery  to  tlie  sister  was  a  good  delivery ;  and  he  explained  to 

8  The  argument  of  counsel  and  that  portion  of  the  opinion  relating  to 
counsel's  contention  that  the  deed  was  void  under  St.  13  Eliz,  cc.  4  and  5, 
are  omitted. 


Ch.  2)  EXECUTION   OF   DEEDS  291 

them,  *hat  if  the  delivery  was  a  departing  with  the  possession,  and  of 
the  power  and  control  over  the  deed  for  the  benefit  of  Mr.  Garnons, 
in  order  that  it  might  be  delivered  to  him  either  in  Mr.  Wynne's  life- 
time, or  after  his  death,  the  delivery  would  be  good ;  but  if  it  was  de- 
livered to  the  sister  for  safe  custody  only  for  Mr.  Wynne,  and  to  be 
subject  to  his  future  control  and  disposition,  it  was  not  a  good  delivery, 
and  they  ought  to  find  for  the  defendant.  The  jury  found  for  the 
plaintiff.  Their  opinion,  therefore,  was,  that  Mr.  Wynne  parted  with 
the  possession  and  all  power  and  control  over  the  deed,  and  that  the 
sister  held  it  for  Mr.  Garnons,  free  from  the  control  and  disposition 
of  the  brother. 

It  was  urged  upon  the  argument,  that  there  was  no  evidence  to  war- 
rant this  finding,  and  that  the  conclusion  which  the  jury  drew  had  no 
premises  upon  which  it  can  be  supported.  Is  this  objection,  however, 
valid?  Why  did  Mr.  Wynne  part  with  the  possession  to  his  sister,  ex- 
cept to  put  it  out  of  his  own  control  ?  Why  did  he  say  when  he  deliv- 
ered the  first  parcel,  "it  belongs  to  Mr.  Garnons,"  if  he  did  not  mean 
her  to  understand,  that  it  was  to  be  held  for  Mr.  Garnons'  use?  And 
though  the  sister  did  return  it  to  her  brother  when  he  asked  for  it, 
would  she  not  have  been  justified  had  she  refused?  Might  she  not 
have  said,  "You  told  me  it  belonged  to  Mr.  Garnons,  and  I  will  part 
with  it  to  no  one  but  with  his  concurrence."  The  finding,  therefore,  of 
the  jury,  if  this  be  a  material  point,  appears  to  me  well  warranted  by 
the  evidence,  and  then  there  will  be  two  questions  upon  the  first  point : 
One,  whether  when  a  deed  is  duly  signed  and  sealed,  and  formally  de- 
livered with  apt  words  of  delivery,  but  is  retained  by  the  party  execut- 
ing it,  that  retention  will  obstruct  the  operation  of  the  deed ;  the  other^ 
whether  if  delivery  from  such  party  be  essential,  a  delivery  to  a  third 
person  \fill  be  sufficient,  if  such  delivery  puts  the  instrument  out  of  the 
power  and  control  of  the  party  who  executed  it  though  such  third  per- 
son does  not  pass  the  deed  to  the  person  who  is  to  be  benefited  by  it, 
until  after  the  death  of  the  party  by  whom  it  was  executed. 

Upon  the  first  question,  whether  a  deed  will  operate  as  a  deed  though 
it  is  never  parted  with  by  the  person  who  executed  it,  there  are  many 
authorities  to  show  that  it  will.  In  Uarlow  v.  Heneage,  Prec.  Chan.  211, 
George  Heneage  executed  a  deed  purporting  to  convey  an  estate  to 
trustees,  that  they  might  receive  the  profits,  and  put  them  out  for  the 
benefit  of  his  two  daughters,  and  gave  bond  to  the  same  trustees  condi- 
tioned to  pay  to  them  £1,000.  at  a  certain  day,  in  trust  for  his  daugh- 
ters ;  but  he  kept  both  deed  and  bond  in  his  own  power,  and  received 
the  profits  of  the  estate  till  he  died :  he  noticed  the  bond  by  his  will, 
and  gave  legacies  to  his  daughters  in  full  satisfaction  of  it,  but  the 
daughters  elected  to  have  the  benefit  of  the  deed  and  bond,  and  filed  a 
bill  in  equity  accordingly.  It  was  urged,  that  the  deed  and  bond  being 
voluntary,  and  always  kept  by  the  father  in  his  own  hands,  were  to  be 
taken  as  a  cautionary  provision  only.  Lord  Keeper  Wright  said,  these 
were  the  father's  deeds,  and  he  could  not  derogate  from  them ;  and  the 


292  DERIVATIVE  TiTi^ES  (Part  2 

parties  having  agreed  to  set  the  maintenance  of  the  daughters  against 
the  profits  received  by  the  father  from  the  estate,  he  decreed  upon  the 
bond  only;  but  that  decree  was,  that  interest  should  be  paid  upon  the 
bond  from  the  time  when  the  condition  made  the  money  payable.  In 
Clavering  v.  Clavering,  Prec.  Chan.  235,  2  Vern.  473,  1  Bro.  Pari.  Cas. 
122,  Sir  James  Clavering  settled  an  estate  upon  one  son  in  1684,  and 
in  1690  made  a  settlement  of  the  same  estate  upon  another  son:  he 
never  delivered  out  or  published  the  settlement  of  1684,  but  had  it  in 
his  own  power,  and  it  was  found  after  his  death  amongst  his  waste 
papers.  A  bill  was  filed  under  the  settlement  of  1690,  for  relief  against 
the  settlement  of  1684;  but  Lord  Keeper  Wright  held,  the  relief  could 
not  be  granted,  and  observed,  that  though  the  settlement  of  1684  was 
always  in  the  custody  or  power  of  Sir  James,  that  did  not  give  him  a 
power  to  resume  the  estate,  and  he  dismissed  the  bill.  In  Lady  Hud- 
son's Case,  cited  by  Lord  Keeper  Wright,  a  father,  being  displeased 
with  his  son,  executed  a  deed  giving  his  wife  £100.  per  annum  in  aug- 
mentation of  her  jointure;  he  kept  tlie  settlement  in  his  own  power, 
and  on  being  reconciled  to  his  son,  cancelled  it.  The  wife  found  the 
deed  after  his  death,  and  on  a  trial  at  law,  the  deed  being  proved  to 
have  been  executed,  was  adjudged  good,  though  cancelled,  and  the  son 
having  filed  a  bill  in  equity  to  be  relieved  against  tlie  deed.  Lord  Somers 
dismissed  the  bill.  In  Naldred  v.  Gilham,  1  Pr.  Wms.  57'7,  Mrs.  Nal- 
dred  in  1707  executed  a  deed,  by  which  she  covenanted  to  stand  seised 
to  the  use  of  herself,  remainder  to  a  child  of  three  years  old,  a  nephew, 
in  fee.  She  kept  this  deed  in  her  possession,  and  afterwards  burnt  it 
and  made  a  new  settlement;  a  copy  of  this  deed  having  been  surrepti- 
tiously obtained  before  the  deed  was  burnt,  a  bill  was  filed  to  establish 
this  copy,  and  to  have  the  second  settlement  delivered  up  and  Sir  Jos- 
eph. Jekyl  determined,  with  great  clearness,  for  the  plaintiff,  and  grant- 
ed a  perpetual  injunction  against  the  defendant,  who  claimed  under 
the  second  settlement.  It  is  true.  Lord  Chancellor  Parker  reversed 
this  decree ;  but  it  was  not  on  the  ground  that  the  deed  was  not  well 
executed,  or  that  it  was  not  binding  because  Mrs.  Naldred  had  kept  it 
in  her  possession,  but  because  it  was  plain  that  she  intended  to  keep 
the  estate  in  her  own  power ;  that  sh$  designed  that  there  should  have 
been  a  power  of  revocation  in  the  settlement;  that  she  thought  while 
she  had  the  deed  in  her  custody,  she  had  also  the  estate  at  her  com- 
mand; that,  in  fact,  she  had  been  imposed  upon,  by  the  deed's  being 
made  an  absolute  conveyance,  which  was  unreasonable,  when  it  ought 
to  have  had  a  power  of  revocation,  and  because  the  plaintiff,  if  he  had 
any  title,  had  a  title  at  law,  and  had,  therefore,  no  business  in  a  court  of 
equity.  Lord  Parker's  decision,  therefore,  is  consistent  with  the  posi-_^ 
tion  that  a  deed.  In  general,  may  be  valid,  though  it  remains  under  the_ 
control  of  the  party  who  executes  it,  not  at  variance  with  it ;  and  so  it  is 
clearly  considered  in  Boughton  v.  Boughton,  1  Atkyns,  625.  In  that 
case,  a  voluntary  deed  had  been  made,  without  power  of  revocation, 
and  the  maker  kept  it  by  him.    Lord  Hardwicke  considered  it  as  valid, 


Ch.  2)  EXECUTION   OF  DEEDS  293 

and  acted  upon  it;  and  he  distinguished  it  from  Naldred  v.  Gilham, 
which  he  said  was  not  appHcable  to  every  case,  but  depended  upon  par- 
ticular circumstances;  and  he  described  Lord  Macclesfield  as  having 
stated,  as  the  ground  of  his  decree,  that  he  would  not  establish  a  copy- 
surreptitiously  obtained,  but  would  leave  the  party  to  his  remedy  at 
law,  and  that  the  keeping  the  deed  (of  which  there  were  two  parts)  im- 
plied an  intention  of  revoking,  (or  rather  of  reserving  a  power  to  re- 
voke.) I  Upon  these  authorities,  it  seems  to  me,  that_vvhere  an  instru- 
ment is_formally  sealed  and  delivered,  and  there  is  nothing  to  qualify 
the  delivery  but  the  keeping  the  deed  in  the  hands  of  the  executing 
party,  nothing  to  show  he  did  not  intend  it  to  operate  immediately,  that 
it  is  a  valid  and  effectual  deed,  and  that  delivery  to  the  party  who  is 
to  take  by  it,  or  to  any  person  for  his  use,^  is  not  essential.  I  do  not  rely 
on  Doe  v.  Roberts,  2  Barn.  &  A.  367,  because  there  the  brother  who 
executed  the  deed,  though  he  retained  the  title  deeds,  parted  with  the 
deed  which  he  executed. 

But  if  this  point  were  doubtful,  can  there  be  any  question  but  that 
delivery  to  a  third  person,  for  the  use  of  the  party  in  whose  favor  a 
deed  is  made,  where  the  grantor  parts  with  all  control  over  the  deed 
makes  the  deed  effectual  from  tlie  instant  of  such  delivery?  The  law 
will  presume,  if  nothing  appear  to  tlie  contrary,  that  a  man  will  accept 
what  is  for  his^  benefit  (11  East,  623,  per  Lord  Ellenborough) ;  and 
there  is  the  strongest  ground  here  for  presuming  Mr.  Garnons'  assent, 
because  of  his  declaration  that  he  relied  and  expected  Mr.  Wynne 
would  provide  him  security  for  his  money,  and  Wynne  had  given  an 
answer  importing  that  he  would.  Shepherd,  who  is  particularly  strict 
in  requiring  that  the  deed  should  pass  from  the  possession  of  the  gran- 
tor, (and  more  strict  than  the  cases  I  have  stated  imply  to  be  neces- 
sary,) lays  it  down  that  delivery  to  the  grantee  will  be  sufficient,  or  de- 
livery to  any  one  he  has  authorized  to  receive  it,  or  delivery  to 
a  stranger  for  his  use  and  on  his  behalf.  Shep.  57.  And  2  Roll. 
Abr.  (K.)  24,  pi.  7,  Taw  v.  Bury,  Dyer,  167  b,  1  Anders.  4,  and 
Alford  V.  Lea,  2  Leon.  Ill,  Cro.  Eliz.  54,  and  3  Co.  27,  are  clear  au- 
thorities, that,  on  a  delivery  to  a  stranger  for  the  use  and  on  the  be- 
half of  the  grantee,  the  deed  will  operate  instanter,  and  its  operation 
will  not  be  postponed  till  it  is  delivered  over  to  or  accepted  by  the  gran- 
tee. The  passage  in  Rolle's  Abridgment  is  this:  "If  a  man  make  an 
obligation  to  L,  and  deliver  it  to  B.,  if  L  get  the  obligation,  he  shall 
have  action  upon  it,  for  it  shall  be  intended  that  B.  took  the  deed  for 
him  as  his  servant.  3  H.  VI,  27."  The  point  is  put  arguendo  by  Pas- 
ton,  Serjt.  in  3  H.  VI,  who  adds,  "for  a  servant  may  do  what  is  for 
his  master's  advantage,  what  is  to  his  disadvantage  not."  In  Taw  v. 
Bury  an  executor  sued  upon  a  bond.  The  defendant  pleaded,  that  he 
causes  tlie  bond  to  be  written  and  sealed,  and  delivered  it  to  Calmady 
to  deliver  to  the  testator  as  defendant's  deed ;  that  Calmady  offered  to 
deliver  it  to  testator  as  defendant's  deed,  and  the  testator  refused  to 
accept  it  as  such ;  wherefore  Calmady  left  it  with  testator  as  a  sched- 


294  DERIVATIVE  TITLES  (Part  2 

ule,  and  not  as  defendant's  deed,  and  so  non  est  factum.  On  demurrer 
on  this  and  another  ground,  Sir  Henry  Brown  and  Dyer,  Justices,  held, 
that,  first  by  the  delivery  of  it  to  Calmady,  without  speaking  of  it  as 
the  defendant's  deed,  the  deed  was  good,  and  was  in  law  the  deed  of  de- 
fendant before  any  delivery  over  to  the  testator,  and  then  testator's  re- 
fusal could  not  undo  it  as  defendant's  deed  from  the  beginning,  and 
they  gave  judgment  for  the  plaintiff,  very  much  against  the  opinion 
of  the  Chief  Justice  Sir  Anthony  Brown,  but  others  of  the  King's 
Bench,  says  Dyer,  agreed  to  that  judgment.  It  was  afterwards  re- 
versed, however,  for  a  discontinuance  in  the  pleadings.  Sir  A.  Brown's 
doubt  might  possibly  be  grounded  on  this,  that  the  delivery  to  Calmady 
was  conditional,  if  the  testator  would  accept  it;  and  if  so,  it  would  not 
invalidate  the  position,  which  alone  is  material  here,  that  an  uncondi- 
tional delivery  to  a  stranger  for  the  benefit  of  the  grantee  will  enure 
immediately  to  the  benefit  of  the  grantee,  and  will  make  the  deed  a 
perfect  deed,  without  any  concurrence  by  the  grantee.  And  this  is 
further  proved  by  Alford  v.  Lea,  2  Leon.  110,  Cro.  Eliz.  54.  That  was 
debt  upon  an  arbitration  bond ;  the  award  directed,  that  before  the  feast 
of  Saint  Peter  both  parties  should  release  to  each  other  all  actions. 
Defendant  executed  a  release  on  the  eve  of  the  feast,  and  delivered  it  to 
Prim  to  the  use  of  the  plaintiff,  but  the  plaintiff  did  not  know  of  it 
until  after  the  feast,  and  then  he  disagreed  to  it,  and  whether  this  was  a 
performance  of  the  condition  was  the  question.  It  was  urged  that  it 
was  not,  for  the  release  took  no  effect  till  agreement  of  the  releasee. 
It  was  answered,  it  was  immediately  a  release,  and  defendant  could 
not  plead  non  est  factum,  or  countermand  it,  and  plaintiff  might  agree 
to  it  when  he  pleased.  And  it  was  adjudged  to  be  a  good  performance 
of  the  condition,  no  place  being  appointed  for  delivering  it,  and  the  de- 
fendant might  not  be  able  to  find  the  plaintiff,  and  they  relied  on  Taw's 
Case.  This,  therefore,  was  a  confirmation,  at  a  distance  of  twenty- 
eight  years,  of  Taw  v.  Bury ;  and  at  a  still  later  period  {33  Eliz.)  it  was 
again  confirmed  in  the  great  case  of  Butler  v.  Baker,  3  Co.  26  b.  Lord 
Coke  explains  this  point  very  satisfactorily.  "If  A.  make  an  obligation 
to  B.,  and  deliver  it  to  C.  to  the  use  of  B.,  this  is  the  deed  of  A.  pres- 
ently. But  if  C.  offer  it  to  B.,  there  B.  may  refuse  it  in  pais,  and  there- 
by the  obligation  will  lose  its  force ;  (but,  perhaps,  in  such  case,  A.  in 
an  action  brought  on  this  obligation  cannot  plead  non  est  factum,  be- 
cause it  was  once  his  deed,)  and  therewith  agrees  Hil.  1  Eliz.  Tawe's 
Case,  S.  P.  Bro.  Ab.  Donee,  pi.  29 ;  8  Vin.  488.  The  same  law  of  a  gift 
of  goods  and  chattels,  if  the  deed  be  delivered  to  the  use  of  the  donee, 
the  goods  and  chattels  are  in  the  donee  presently,  before  notice  or 
agreement;  but  the  donee  may  make  refusal  in  pais,  and  by  that  the 
property  and  interest  will  be  divested,  and  such  disagreement  need  not 
be  in  a  court  of  record.  Note,  reader,  by  this  resolution  you  will  not 
be  led  into  error  by  certain  opinions  delivered  by  the  way  and  without 
premeditation,  in  7  Ed.  IV,  7  &c.,  and  other  books  obiter."  Upon  these 
authorities  we  are  of  opinion  that  the  delivery  of  this  deed  By  lA^ynneT 


Ch.  2)  EXECUTION   OF   DEEDS  295 

and_£utting  it  into  the  possession  of  his  sister,  made  it  a  good  and  valid 
deeT^aLJeast_irQiJl^the  time  it  was  put  inta  the  sister's  posses- 
sion."     *     *     * 

)V.  L  FRYER  V.  FRYER.    W,  /.   ¥  •  h-^ 

(Supreme  Court  of  Nebraska,  1906.     77  Neb.  29S,   109  N.   W.   175,   124  Am. 

St.  Rep.  850.) 

Albert,  C.^°    This  is  an  appeal  from  a  decree  of  foreclosure  where-    /0/7       ".  J 
by  the  lien  of  plaintiff's  mortgage  is  o-iven  priority  over  tlie  respective   V/'^^^^**'^Tl 
judgment  liens  of  the  two  banks,  defendants  herein.     The  mortgage        /^/vZ^A^ 
is  in  the  Torm  of  an  absolute  conveyance  to  the  plaintiff  by  the  de-         """u 
fendant,  William  I,  Fryer,  and  his  wife  of  certain  real  estate  in  the     Oy>^*..^^iuI 
city  of  Lincoln,  was  ji^rned  and  a.cknowlcdp^ed  by  the  grantors  on  the     ^Cjy 
22d  day  of  April,  1901,  and  was  hied  for  record  ^n  tlie  28th  day  of       ff^^^^^/T*'*^^**^ 
April,  1902,  by  William  L.  Fryer,  who  had  retained  it  in  his  posses-      U       " 
sion  after  it  was  signed  and  acknowledged,  and  after  it  was  rprnrHeH^ 
was  forwarded  to  him  at  Denver.  Colorado. _^vhere  he  had  taken  up 
his  abode.     Plaintiff  resides  in  the  state  of  Iowa.     On  tlie  18th  day 
of  December,   1902,'  each  of  the  defendant  banks  brought  an  action 
against  William  I.  Fryer,  who  was  the  fee  owner,  ami  caused  a  writ    Q^/t 
of  attachment  to  issue  which  was  levied  on  the  premises  covered  by  ^"i^ ' 
the  mortgage.     In  each  of  these  cases  judgment  was  given  in  favor 
of  the  plaintiff  therein  and  an  order  entered  for  the  sale  of  the  prem- 
ises for  the  satisfaction  of  the  judgment.    In  the  present  suit  the  con- 
test is  between  the  plaintiff  and  the  two  banks  as  to  the  prigritx Jii 
their  respective  lienSj  and  is  now  narrowed  down  to  the  single  ques- 
tion whether  there  had  been  a  delivery  of  the  mortgage  to  the  plain- 
tiff before  the  levy  of  attachments  on  the  property.     The  two  iDanks 
join  in  an  appeal,  and   contend  that,  while  the  evidence  shows  the 
mortgage  was  signed,  acknowledged,  and  recorded  some  time  before 
their  attachments  were  levied,  it  is  insufficient  to  sustain  a  finding  that 
it  was  delivered  to  the  plaintiff  before  that  date. 

Appellants'  contention  seems  to  be  based  on  the  fact  that  the  plain- 
tiff never  saw  the  mortgage  nor  had  actual  manual  possession  of  it 
until  after  this  suit  had  been  pending  for  some  time,  and  long  after 
the  levy  of  the  attachments.  But  the  authorities  are  uniform  that  ac- 
tual  manual  delivery_is  not^s.sential  to  give  effect  to  a  deed..  In  Issitt 
v.  Dewey,  47  Neb.  196,  66  N.  W.  288,  it  was  held  that,  where  the 
grantor  places  his  deed  on  record  for  the  piirpose  and  w^th  the  in- 
tent of  passing  title  to  the  grantee,  actual  manual  delivery  and  formal 
acceptance  are  not  essential  to  the  validity  of  the  conveyance.  In  the 
case  at  bar  the  evidence  is  conclusive  that  at  the  date  of  the  mortgage 

9  See  Xenos  v.  Wickham,  13  C.  B.  N.  S.  .381  (1S62),  14  C.  B.  N.  S.  4.35  (186-3) 
L.  K.  2  H.  L.  296  (1867) ;   Bligbt  v.  Schenck,  10  Pa.  285,  51  Am.  Dec.  478  (1849).' 

10  A  portion  of  the  opinion  is  omitted. 


296  DERIVATIVE  TITLES  (Part  2 

deed  the  mortgagor,  William  I.  Fryer,  was  indebted  to  the  plaintiff 
on  two  notes,  aggregating  $5,000,  for  borrowed  money,  and  that  at 
the  time  such  indebtedness  was  contracted  it  was  agreed  between  the 
parties  that  William  I.  Fryer  should  convey  tlie  property  in  suit  to 
the  plaintiff  as  security  for  the  debt,  and  file  the  conveyance  for  rec- 
ord. William  I.  Fryer  testified  on  behalf  of  tlie  plaintiff",  and,  while 
portions  of  his  testimony  would  indicate  that  he  had  no  clear  recol- 
lection of  what  he  did  with  the  instrument  after  it  was  forwarded  to 
him  at  Denver,  toward  the  close  of  his  testimony  he  testified  positively 
that  it  had  been  forwarded  to  the  plaintiff  before  the  date  of  a  certain 
payment  made  by  him,  which  was  made  September  21,  1902,  and  al- 
most three  months  before  the  attachments  were  levied.  It  was  after 
learning  of  this  testimony  that  plaintiff  made  search  and  found  the 
instrument  among  his  papers.  His  statement,  received  in  evidence 
as  a  part  of  his  testimony,  accounting  for  his  failure  to  discover  it 
earlier,  is  to  the  effect  that  it  must  have  been  received  by  another 
member  of  his  household  and  placed  among  his  papers  during  his  ab- 
sence from  home.  The  record  further  shows  that  at  least  two  months 
before  the  attachments  were  levied  William  I.  Fryer  had  importuned 
the  plaintiff"  to  reconvey  a  portion  of  the  mortgaged  premises  to  the 
latter's  wife,  and  that  plaintiff  had  refused  to  do  so.  The  evidence, 
we  think,  is  amply  sufficient  to  show  that  tlie  instrument  was  placed 
on  record  by  William  I.  Fryer  with  the  intent  and  for  the  purpose  of 
passing  the  title  to  the  plaintiff,  and  to  render  evidence  of  an  actual 
manual  delivery  and  formal  acceptance  unnecessary,  under  the  rule 
announced  in  Issitt  v.  Dewey,  supra.     *     *     * 

The  decree  of  the  district  court  seems  amply  sustained  by  the  evi- 
dence, and  we  recommend  its  affirmance. 

DuFFiE  and  Jackson,  CC,  concur. 

By  the  Court.  For  the  reasons  stated  in  the  foregoing  opinion, 
the  decree  of  the  district  court  is  affirmed.^ ^  -/ 

11  See  Moore  v,  Hazelton,  9  Allen  (Mass.)  102  (1864),  where  an  insolvent 
guardian,  being  largely  indebted  to  his  ward's  estate,  upon  the  ward's  com- 
ing of  age,  executed  to  the  ward,  in  the  presence  of  an  attesting  witness,  an 
assignment  of  a  mortgage  of  realty  in  a  sum  less  than  that  due  to  the  ward. 
This  assignment  was  kept  by  the  guardian  until  after  the  institution  of  pro- 
ceedings in  insolvency  by  him,  more  than  a  year  afterwards,  when  it  was 
taken  by  the  assignee  in  insolvency.  The  ward,  who  knew  nothing  of  the 
assignment  until  after  the  insolvency,  filed  a  bill  in  equity  to  compel  the  de- 
livery of  the  assignment. 


Cll.  2)  EXECUTION  OF  DEEDS  297 

MITCHELL  V.  RYAN. 
(Supreme  Court  of  Ohio.  lSo4.     8  Ohio  St.  377.) 

The  action  is  one  of  ejectmenj^  and  is  in  this  court  by  agreement  of 
parties,  on  the  facts  appearing  in  the  notes  of  Judge  Whitman,  taken 
at  the  trial  in  the  common  pleas,  and  the  deposition  of  Margaret  Shan- 
non. From  the  judge's  notes,  it  appeared  that  the  plaintiff  first  offered 
a  deed  from  Owen  Shannon  to  Ellen  Shannon,  for  the  land  in  con- 
troversy. TEis^  deed,  dated  April  2,  1838,  was  left  with  the  recorder 
of  Perry  county,  April  6th,  1838,  and  was  actually  recorded^  April 
JJth^l838,  It  was  agreed  that  Owen  Shannon  was  the  common  source 
of  title.  The  marriage  of  Ellen_  Shannp?  to  John  Mitchell,  January 
7th,  1840,  was  admitted.  Her  death  was  also  admitted.  The  posses- 
sion was  admitted  always  to  have  been  in  Owen  Shannon,  or  the  de- 
fendant Ryan.  The  defendant  oft'ered  in  evidence  a  deed  from  Owen 
Shannon  and  wife,  to  him,  Ryan,  dated  July  27tli,  1847,  recorded  Feb- 
ruary 14jth.  1850^ 

Owen  Shannon,  the  grantor,  testified  in  substance  as  follows :  "El- 
len Shannon  was  my  daughter ;  at  the  time  of  the  deed  to  her,  she 
was  in  the  east ;  she  knew  nothing  of  it ;  no  consideration  passed, 
and  she  never  had  any  knowledge  of  the  conveyance ;  she  was  born 
in  1823 ;  a  year  after  the  execution  of  the  deed,  she  came  to  Ohio ; 
she  was  married  in  about  two  years  after  the  conveyance ;  at  this 
time  I  was  in  possession ;  I  continued  in  possession  until  I  contracted 
to  sell  to  one  Kinney ;  he  took  possession  and  made  improvements ; 
left,  and  gave  up  the  contract ;  then  Patrick  Haughran  went  in  under 
verbal  contract  with  me,  and  made  improvements ;  he  left ;  I  then 
sold  to  Timothy  Ryan,  he  paid  me  two  hundred  dollars ;  Ryan  never 
moved  on  the  place;  my  daughter  lived  a  mile  from  the  place  after 
her  marriage;    she  died  last  spring  or  fall." 

It  was  agreed  that  the  taxes  were  always  paid^by^ Shannon,  till^the 
sale  to  Ryan. 

Henry  Green  testified  that  a  short  time  before  the  last  term  of  the 
court,  Mitchell  had  no  knowledge  of  the  deed  to  his  wife ;  Duffy  told 
him ;  this  was  just  about  the  time  of  the  death  of  the  wife. 

Owen  Shannon  being  recalled,  testified  that  he  sent  the  deed  by  mail, 
from  McConnellsville  to  Somerset,  to  be  recorded ;  it  came  back  in 
the  same  way ;   he  kept  the  original  deed  till  it  was  lost. 

The  deposition  of  Margaret  Shannon  was  in  substance  as  follows : 
"I  am  a  sister  of  Ann  Ryan,  wife  of  the  defendant,  and  also  of  Ellen 
Mitchell,  deceased,  wife  of  John  Mitchell.  Ellen  lived  in  New  York 
before- she  came  to  Ohio;  she  was  the  last  of  father's  family  who 
came ;  he  sent  fifty  dollars  to  bring  her  out ;  had  no  knowledge  of  her 
owning  any  land  in  Perry  county  previous  to  her  death ;  I  was  with 
her  off  and  on  for  two  years  before  her  death,  she  being  sick ;  she 
had  not  enough  of  the  necessaries  of  life ;    she  had  nothing  that  was 


298  ■  DERIVATIVE  TITLES  (Part  2 

nourishing,  but  did  not  complain,  because  she  thought  her  husband 
was  poor;  she  and  Mitchell,  after  they  left  McConnellsville,  lived  on 
a  farm  owned  by  Mitchell  and  his  father,  until  it  was  sold  to  P.  Pagan ; 
tliey  then  moved  on  to  Caron's  farm,  where  they  lived  about  a  year, 
and  until  she  died;  that  farm  had  cleared  land,  but  they  lived  in  a 
small  log  cabin  in  the  woods;  during  tliat  time  Carons  and  they  fell 
out,  and  she  wanted  to  move  on  to  an  eighty  acre  tract  adjoining  fa- 
ther's farm;  she  told  me  that  if  Pagan  would  pay  his  notes  accord- 
ing to  promise,  they  would  buy  a  nice  little  place,  if  only  40  or  80 
acres;  I  am  acquainted  with  the  place  in  dispute;  during  the  time 
my  sister  lived  in  the  neighborhood,  Kinney  lived  on  it ;  next,  Joseph 
Perril,  who  occupied  it  at  least  during  one  crop  ;  after  him  was  Patrick- 
Haughran,  who  raised  on  it,  I  think,  more  than  one  crop ;  Ryan  then 
had  it ;  he  rented  it  to  Dawson,  and  afterward  to  Dew,  who  now  oc- 
cupies it ;  it  had  on  it,  at  the  time  of  my  sister's  death,  two  houses  and 
a  stable,  and  a  considerable  of  the  land  was  cleared;  never  heard  her 
or  John  Mitchell  say  anything  about  owning  it;  it  would  have  afforded 
a  more  comfortable  place  to  live  in,  than  that  where  she  died;  Ellen 
knew  all  about  the  sales  and  the  renting  of  the  place  by  father;  I  told 
her  all  about  it;  she  asked  me  how  much  father  got  of  Ryan  for  it: 
told  her  $200 ;  Ellen  had  no  property  with  which  to  purchase  land  be- 
fore her  coming  to  Ohio,  or  previous  to  her  marriage;  William, 
Michael,  and  Mary  Ann,  the  plaintiffs  in  this  action,  were  the  only 
children  Ellen  left." 

Thurman,  C.  J.    The  decision  of  this  case  depends  upon  the  qiies- 
^  tion  whether  the  recorded  instrument,  purporting  to  be  a  deed  from__ 

(Dwen  Shannon  and  wife,  to  Ellen  Shannon,  was  ever,  in  contempla- 
tion of  law,  delivered. 

As  the  statute  provides  that  copies  from  the  records  of  deeds,  duly 
certified  by  the  recorder,  and  under  his  official  seal,  "shall  be  received 
in  all  courts  and  places  within  this  State,  as  _prima^ Jacie  evidence  of 
the  existence  of  such  deeds,"  it  is  very  clear  that  the  record  of  a  deed 
is  prima  facie  evidence  of  its  delivery ;  since,  without  delivery,  it  can- 
not exist  as  a  deed.  Swan's  St.  (New  Ed.)  p.  310,  §  10.  To  the 
same  effect  are  the  authorities,  Steele  v.  Lowry,  4  Ohio,  74,  19  Am. 
Dec.  581;  Foster's  Lessee  v.  Dugan,  8  Ohio,  87,  31  Am.  Dec.  432; 
Hammell  v.  Hammell,  19  Ohio,  18;  Jackson  v.  Perkins,  2  Wend. 
(N.  Y.)  317;  Gilbert  v.  N.  Am.  P.  Ins.  Co.,  23  Wend.  (N.  Y.)  46,  35 
Am.  Dec.  543. 

It  is  also  clear  that  this  presumption  may  be  rebutted  by  proof.  For 
the  statute  makes  the  record  prima  facie  evidence  only,  for  tlie  obvi- 
ous reason  that  it  may  be  the  result  of  accident,  mistake,  or  fraud. 
And  being  the  act  of  a  mere  ministerial  officer,  there  is  no  reason  why 
it  should  not  be  subject  to  explanation.  See  the  cases  above  cited  and 
also  Chess  v.  Chess,  1  Pen.  &  W.  (Pa.)  32,  21  Am.  Dec.  350,  and  Jack- 
son V.  Schoonmaker,  4  Johns.  (N.  Y.)  163. 

It  was  therefore  proper  for  the  defendant  to  introduce  such  rebut- 


Ch.  2)  EXECUTION   OF  DEEDS  299 

ting  testimony;  indeed,  it  was  indispensable  for  him  to  do  so,  as  the 
burthen  of  proof  that  a  recorded  deed  was  not  delivered,  rests  upon 
the  party  attacking  it. 

He  accordingly  called  Owen  Shannon,  the  grantor,  who  testified  as 
follows : 

"The  grantee,  Ellen  Shannon,  was  my  daughter;  at  time  of  deed 
to  her  in  1838,  2d  April,  she  was  in  the  east;  she  knew  nothing  of 
it;  no  consideration  passed,  and  she  never  had  any  knowledge  of  the 
conveyance;  she  was  born  in  1823;  she  was  15  years  old  when  the 
deed  was  executed ;  she  came  to  Ohio  in  a  year  afterward ;  was  mar- 
ried in  about  two  years  after  the  conveyance;  at  this  time  I  was  in 
possession,  and  I  continued  in  possession  until  I  contracted  to  sell 
the  land  to  Kinney;  he  took  possession,  made  improvements,  left  and 
gave  up  his  contract ;  then  Patrick  Haughran  went  in  under  a  verbal 
contract  with  me,  and  made  improvements;  he  left;  I  then  sold  it  to 
Timothy  Ryan,  the  defendant ;  he  paid  me  $200 ;  agreed  to ;  that  was 
the  consideration ;  Ryan  never  moved  on  to  the  place ;  Ryan  agreed  to 
sell  to  Duffy ;  the  legal  title  is  in  Ryan,  and. he  is  in  possession  by  Duf- 
fy ;  my  daughter  (Ellen)  lived  a  mile  from  the  place  after  her  marriage ; 
she  died  in  January,  or  February,  1852 ;  she  never  had  any  notice  of 
the  conveyance ;  I  sent  the  deed  by  mail  from  McConnellsville  to  Som- 
erset to  be  recorded ;  it  came  back  the  same  way ;  I  kept  the  deed 
until  it  was  lost." 

Other  testimony  was  given  by  the  defendant,  tending  to  prove  that 
the  grantee,  Ellen,  knew  of  the  control  over  the  property  exercised  by 
her  father,  and  of  his  several  contracts  in  relation  to  it;  and  that  she 
made  no  objection,  nor  asserted  any  claim;  but  the  same  testimony 
strongly  tended  to  establish  that  she  never  had  any  knowledge  of  the 
conveyance ;  nor  did  her  husband  know  of  it  until  after  her  death,  and 
after  the  sale  to  Duffy.  It  was  also  agreed  that  Owen  Shannon  paid 
the  taxes  upon  the  land  until  he  sold  to  Ryan.  Upon  this  testimony, 
the  first  question  for  our  consideration  is,  with  what  intent  did  Owen  '"-^- 

Shannon  send  the  deed  to  the  recorder  to  be  recorded  ?  Did  he  thus 
deliver  it  for  the  use  of  the  grantee  and  to  pass  the  title  to  her  im- 
mediately, or  had  he  some  other  intent? 

That  a  delivery  of  a  deed  to  a  stranger  for  the  use  of  the  grantee, 
may  be  a  sufficient  delivery,  is  well  settled.  1  Shep.  Touch,  57,  58; 
Jackson  v.  Phipps,  12  Johns.  N.  Y.  421, 

But  it  is  said  in  the  Touchstonej  that  if  such  a  delivery  be  made 
without  a  declaration  of  the  use,  it  seems  it  is  not  sufficient.  The  rea- 
son of  this  is  very  obvious.  If  the  deed  be  delivered  to  the  grantee, 
tiie  natjjraLpresumption  is  that  it  is  for  his  use,  and  no  words  are 
necessary;  But  if  it  be  handed  to  a  stranger  there  is  no  s;ich  natural 
presumption;  and  hence,  unless  there  be  something  besides  the  mere 
act  of  delivery  to  evidence  the  intent,  it  is  impossible  to  say  that  the 
grantor  designed  to  part  with  the  title.     For  the  delivery  may  be  by 


300  DERIVATIVE  TITLES  (Part  2 

mistake,  or  for  mere  safekeeping,  or  for  some  other  cause  wholly  in- 
dependent of  a  purpose  to  transfer  the  estate. 

But  while  it  is  thus  apparent  that  the  mere  act  of  delivery  to  a 
stranger  is  insufficient,  it  is  equally  clear  that  there  is  no  precise  form 
of  words  necessary  to  declare  tlie  intent.  Anything  that  shows  that 
tlie-  delivery  is  for  the  use  of  the  grantee  is  enough.  For  the  real 
question  is,  does  the  grantor  by  his  act  mean  to  part  with  his  title  ?  and 
whatever  satisfactorily  manifests  this  design  is  as  good  as  an  expHcit 
declaration.  Now  it  does  seem  to  us  that  when  a  man  executes  and 
acknowledges  a  deed  and  delivers  it  to  the  recorder,  with  unqualified 
instruction  to  record  it,  as  was  done  in  the  present  case,  the  reasonable 
presumption,  in  the  absence  of  any  rebutting  circumstance,  is  that 
he  means  thereby  to  transfer  his  title.^^  And  this  presumption  is  pow- 
erfully strengthened  when,  as  in  the  case  before  us,  the  grantee  is  a 
minor  child  of  the  grantor,  and  is  at  a  great  distance  from  him,  so 
that  the  deed  cannot  be  delivered  to  her  in  person,  and  when  too  the 
circumstances  tend  to  show  that  it  is  a  gift,  and  a  reasonable  one,  for 
aught  that  appears  for  the  grantor  to  make. 

It  is  argued,  however,  that  there  are  circumstances  in  proof  that 
rebut  the  idea  that  Shannon,  when  he  caused  the  deed  to  be  recorded, 
meant  to  part  with  his  title ;  and  we  are  referred  to  his  subsequent  pos- 
session of  the  instrument,  to  his  subsequent  control  of  the  property 
and  contracts  to  sell  it,  and  to  the  failure  of  the  grantee,  or  her  hus- 
band, to  assert  any  claim  to  the  land  before  the  commencement  of  this 
suit. 

As  to  the  last  circumstance,  it  is  explained  by  the  fact  that  the  gran- 
tee died  without  any  knowledge  of  the  deed ;  nor  did  her  husband 
know  anything  about  it  until  just  before  this  suit  was  commenced. 
No  inference,  therefore,  can  be  drawn  from  their  silence.  What 
weight,  if  any,  should  be  given  to  tlie  fact  that  the  grantor  never  com- 

12  "It  is  unnecessary  to  controvert  the  proposition,  however,  that  the  rec- 
ord of  a  deed  may  be  an  evidential  fact  having  more  or  less  tendency,  ac- 
cording to  circumstances,  to  show  that  the  deed  had  been  delivered  to  the 
grantee  therein  named  or  to  some  person  for  his  use.  It  may.  under  some 
circumstances,  be  prima  facie  evidence  of  delivery.  But  there  is  no  suffi- 
cient \^'arrant  in  reason  or  precedent  for  declaring  as  a  rule  of  law  or  pre- 
sumption of  fact,  that  the  record  of  a  deed  is,  imder  all  circumstances,  prima 
facie  evidence  of  delivery.  On  the  other  hand,  experience  has  shown  it  to 
be  undoubtedly  time  that,  under  some  circumstances,  the  record  may  have 
no  legitimate  tendency  whatever  to  prove  a  delivery.  The  case  of  Hill  v. 
McNichol.  SO  Me.  220  [13  Atl.  883  (18S8)],  is  an  apt  illustration  of  this  state- 
ment"    Egan  V.  Horrigan,  96  Me.  46,  50.  51,  51  Atl.  246,  248  (1901). 

"If  the  question  were  a  new  one,  there  would  perhaps  be  nothing  diffi- 
cult or  impracticable  in  the  conception  that  the  act  of  leaving  a  deed  with  the 
register  for  record  by  the  grantor  with  the  intent  on  his  part  thereby  to  vest 
the  title  in  the  grantee  should  constitute  the  register  the  agent  for  delivery 
of  the  grantee,  and  that  upon  the  assent  of  the  grantee  tlie  transaction  should 
take  effect  as  a  valid  delivery.  But  we  think  the  law  is  otherwise  in  this 
state.  *  *  *  »  Barnes  v.  Barnes,  161  Mass.  3S1,  384,  37  N.  E.  379,  380 
<1894).     But  see  Rev.  Laws  1902,  Mass.  c.  127,  §  5. 


Ch.  2)  EXECUTION  OF  DEEDS  301 

municated  to  either  of  them,  the  existence  of  the  conveyance,  is  another 
matter. 

Much  stress  has  sometimes  been  laid  upon  the  fact  of  the  grantor's 
possession  of  a  deed  after  an  alleged  delivery  of  it ;  and  it  has  been 
said  that  such  sjubsequent  possession  is  a  very  pregnant  circumstance 
to  show  that  the  supposed  delivery  was  not  absolute.  That  this  may 
often  be  the  case  is  undeniable ;  but  where  the  deed  has  been  recorded, 
such  subsequent  possession  is  evidently  entitled  to  much  less  consid- 
eration than  where  it  has  not.  An  unrecorded  deed  is  the  sole  evi- 
dence of  title,  and  it  would  be  unsafe  and  altogether  unusual  to  leave 
it  with  the  grantor  after  its  delivery.  But  a  recorded  deed  is  not  the 
sole  evidence.  The  statute  makes  the  record  also  proof,  and  a  copy 
of  it  is  admissible,  even  though  the  party  offering  it  has  the  deed  it- 
self in,  his  possession.  Hence,  with  us,  people  have  been  proverbially 
careless  about  their  deeds  after  they,  are  recorded,  and  often,  if  not 
generally,  seem  to  attach  more  importance  to  the  record  than  to  the 
original.  Add  to  this  that  the  grantor,  Owen  Shannon,  was  the  father 
of  the  grantee,  Ellen ;  that  she  was  a  minor,  and  away  from  home 
several  hundred  miles  when  the  deed  was  recorded,  and  that  she  re- 
mained away  for  about  a  year,  and  it  seems  to  us  that  but  little,  if 
any  importance  ought  to  be  attached  to  his  subsequent  possession  of 
the  instrument.  He  was  her  natural  guardian,  and  there  was  nothing 
strange  in  his  having  the  custody  of  what  belonged  to  her,  even  though 
it  was  a  deed  in  which  he  was  the  grantor. 

Waiving  the  question,  whether  the  subsequent  acts  of  ownership,  ex- 
ercised by  Owen  Shannon,  in  respect  to  the  land,  and  his  failure  to 
communicate  the  existence  of  the  deed  to  his  daughter,  are  admissible 
evidence  to  prove  that  it  was  not  his  design  to  transfer  the  title  to 
her  when  he  caused  the  instrument  to  be  recorded,  we  are  inclined 
to  the  opinion,  after  a  consideration  of  tlie  whole  case,  that  the  testi- 
niony  rather  tends  to  prove  a  change  of  his  mind  subsequent  to  the 
delivery^to  the  recorder,  than  to  establish  that  it  was  not  then  his  pur- 
gose  to  convey  tih^  estate.  If  it  had  been  his  purpose  when  he  made 
the  delivery,  to  retain  any  control  over  the  property,  it  is  reasonable 
to  suppose  he  would  have  declared  such  purpose  to  some  one;  if  not 
to  the  recorder,  at  least  to  some  member  of  his  family,  or  to  some 
friend.  He  was  aware  that  by  causing  the  deed  to  be  recorded,  he 
would,  prima  facie,  be  divested  of  his  title,  and  it  is  not  very  reason- 
able to  suppose  that  he  would  make  such  a  prima  facie  case  against 
himself,  without  taking  some  precaution  to  enable  him  to  rebut  it,  if 
he  did  not  mean  fo  do  what  his  act  purported. 

But  this  is  not  all.  He  was  called  as  a  witness,  and  testified.  When 
he  did  so,  he  had  the  strongest  motives  to  state  that  he  did  not  mean, 
by  the  execution  and  recording  of  tlie  deed,  to  part  with  his  title.  For 
he  had  subsequently  conveyed  the  land  to  Ryan  with  warranty,  and 
if  he  made  that  conveyance  wilfully  and  corruptly,  knowing  that  he 


302  DERIVATIVE  TITLES  (Part  2 

had  no  title,  he  committed  no  less  than  a  penitentiary  offense.  Yet  he 
uttered  not  one  word  to  explain  the  intention  witli  which  he  sent  the 
deed  to  the  recorder.  Nor  did  the  defendant  venture,  so  far  as  ap- 
pears, to  put  a  question  to  him  touching  his  intent.  Why  this  silence 
of  both  witness  and  party?  Why  this  failure  to  prove  what  the  inter- 
est of  both  required  to  be  proved?  Why  this  neglect  to  make  a  suc- 
cessful defense?  It -seems  to  us  there  is  but  one  answer  we  are  au- 
thorized to  give  to  these  questions,  and  that  is,  that  the  question  was 
not  asked,  because  the  answer  would  have  been  unfavorable,  and,  for 
the  same  reason,  there  was  no  unasked  statement  by  the  witness.  This 
is  the  ordinary  presumption  where  a  party  fails  to  offer  proof  of  what 
he  ought  to  prove,  if  it  exist.  It  is  almost  incredible  that,  in  the  case 
before  us,  the  defendant  would  fail  to  ask,  and  the  witness  to  state, 
whether  it  was  the  intention  to  convey  the  land,  if  that  intentipn  had 
not  in  fact  existed.  The  very  object  for  which  the  witness  was  called 
was  to  prove  that  the  deed  was  never  delivered,  but  instead  of  asking 
him  directly  for  what  purpose  he  caused  it  to  be  recorded,  the  defend- 
ant contents  himself  with  proving  circumstances  from  which  he  asks 
the  court  to  infer  the  purpose. 
)  ■  We  suppose  the  truth  to  be,  that  the  deed  was  sent  to  the  recorder  to 

\  be  recorded  in  order  to  vest  the  title  in  the  grantee,  and  make  the  prop- 

(  erty  hers  ;  but,  that  afterward,  the  grantor  changed  his  mind,  and  con- 

(  eluded  not  to  give  it  to  her.     And,  it  is  altogether  probable,  assuming 

the  deed  to  be  a  gift,  that  he  supposed  he  had  a  right  to  revoke  it.    This 
view  reconciles  his  conduct  perfectly,  without  imputing  to  him  any 
/  wrong  motive  at  any  time,  and  it  is  the  only  view  that,  upon  the  testi- 

(  mony,  we  feel  at  liberty  to  take. 

And  here  I  would  rernark,  that  very  clear  proof  ought  to  be  made, 
to  warrant  a  court  in  holding  that  a  man  who  has  executed  and  ac- 
knowledged a  deed,  and  caused  it  to  be  recorded,  did  not  mean  thereby 
to  part  with  his  title.  If  such  deeds  could  be  overthrown  by  slight 
testimony,  a  door  would  be  opened  to  the  grossest  fraud.  The  testi- 
mony should,  therefore,  do  more  than  make  a  doubtful  case.  It  should 
establish  clearly,  that  the  dehvery  for  record  was  not  for  the  use  of 
the  grantee. 

But  it  is  urged,  that  even  if  Owen  Shannon  did  intend  to  part  with 
the  title,  yet  the  delivery  was  insufficient,  because  it  was  never  accepted, 
or  assented  to  by  the  grantee;  and  it  is  said  that  every  sufficient  de- 
livery includes  such  assent  or  acceptance,  for  no  one  can  be  made  a 
grantee  without  his  consent. ^^  *  *  *  ||-  follows  that  the  plaintiff 
is  entitled  to  judgment. 

13  The  portion  of  the  opinion  relating  to  matter  of  acceptance,  omitted  hei-e. 
Is  printed  infra,  p.  383. 


Ch.  2)  EXECUTION   OF   DEEDS  303 

MATSON  V.  JOHNSON. 

(Supreme  Court  of  Washington,  1008,    48  Wash,  256,  93  Pac.  324,  125  Am. 

St.  Rep.  924.) 

RuDKiN,  J.  F.  Lanston  died  testate  in  Kitsap  county  in  this  state 
on  the  15th  day  of  June,  1902.  During  his  last  illness  and  a  few  days 
before  his  death,  he  called  in  one  of  his  neighbors  and  directed  him__to 
prepare  a  deed  and  will  in  order  that  he  might  execute  them.    A  deed  g 

was  accordingly  prepared  purporting  to  convey  the  property  now  in  C^t-t^^v, 
controversy  to  the  three  minors  who  are  plaintiffs  in  this  action.  The 
instrument  was  signed  by  the  grantor  in  the  presence  of  two  witnesses. 
but  was  not  acknowledged  because  there  was  no  officer  present  author- 
ized by  law  to  take  the  acknowledgment  of  deeds.  The  grantor  stated 
to  those  present  that  he  would  appoint  Mr.  Tohnson  as  his  executor, 
and  would  instruct  him  to  have  the  deed  acknowledged  and  properly 
executed.  The  property  described  in  the  deed  was  of  the  value  of 
about  $100  and  was  the  only  real  property  owned  by  the  grantor.  At 
the  time  of  the  execution  of  this  deed  and  as  part  of  the  same  transac- 
tion, Lanston  executed  a  will  making  various  small  bequests  which  are  \Ju  aJ(-/  H*-<i 
not  material  here.    The  following  endorsement  was  made  at  the  foot  of    ""^  ' 

the  will  by  direction  of  the  testator :  "Ed  Johnson  are  hereby  empow- 
ered to  appear  for  the  notary  publich  to  have  inlaid  deed  executed." 
What  disposition  was  made  of  the  will  and  deed  after  their  execution 
does  not  appear,  but  both  instruments  were  delivered  to  the  executor 
some  time  after  Lanston's  death  and  were  by  him  filed  in  the  office  of 
the  clerk  of  the  superior  court,  the  will  under  date  of  June  18th  and 
the  deed  on  June  23d,  1902.  The  deed  was  not  filed  for  record  in  the 
auditor's  office  vmtil  February  1,  1906.  At  the  time  of  the  execution  of 
the  deed  and  will,  Lanston  was  the  owner  of  the  real  property  describ- 
ed in  the  deed  and  about  $500  cash  in  bank.  The  will  was  admitted  to 
probate  and  Johnson  appointed  executor  thereof.  On  the  25th  day,  o f 
November,  1905^  the  real  property  now  in  controversy  was  conveyed 
to  the  defendants  in  this  action  by  the  executor  of  the  will,  pursuant 
to  an  order  of  the  superior  court  made  and  entered  in  the  estate  matter. 
The  present  action  was  instituted  by  the  grantees  named  in  the  above 
deed,  through  their  guardian  ad  litem,  to  quiet  their  title  as  against  the 
purchasers  at  the  executor's  sale,  and  from  a  judgment  in  favor  of  the 
defendants,  the  present  appeal  is  prosecuted[  ~~' 

Three  questions  have  been  presented  for  the  consideration  of  this 
court:   (1)  Was  the  Lanston  deed  ineffective  for  lack  of  an_acknmvl-     "^ 
edgment  on  the  part  of  the  grantor;   (2)  was  there  a  delivery  of  the 
deed ;  and,  (3)  are  the  defendants  bona  fide  purchasers. 

Firsts  An  unacknowledged  deed  is  good  as  between  the  parties  in 
this  state.  Such  an  instrument  conveyed  at  least  an  equitable  title. 
Devlin,  Deeds  (2d  Ed.)  §  465 ;   Edson  v.  Knox,  8  Wash.  642,  36  Pac. 


ay 


304  DERIVATIVE  TITLES  (Part  2 

698;  Carson  V.  Thompson,  10  Wash.  295,  38  Pac.  1116;  Bloomingdale 
V.  Weil,  29  Wash.  611,  70  Pac.  94. 

Second.  Was  there  a  delivery  of  the  deed?  "Actual  manual  deliv- 
ery  and  change  of  possession  are  not  required  in  order  to  constitute  an 
effectual  deUvery.  But  whether  there  has  been  a  vaHd  delivery  or  not 
must  be  decided  by  determining  what  was  the  intention  of  the  grantor. 
and  by  regarding  the  particular  circumstances  of  the  case.  Where  a 
father  had  indicated  in  various  ways  that  certain  property  should  be 
bestowed  at  his  death  upon  his  infant  son,  and  for  that  purpose  had 
executed  a  deed,  of  which  he,  however,  retained  the  possession,  effect 
was  given  to  his  intention,  despite  the  fact  that  there  had  been  no 
manual  delivery  of  the  deed."    1  Devlin,  Deeds  (2d  Ed.)  §  269. 

In  Atwood  V.  Atwood,  15  Wash.  285,  46  Pac.  240,  this  court  said: 
"In  coming  to  these  conclusions  we  have  not  lost  sight  of  the  able  argu- 
ment and  large  array  of  authorities  contained  in  the  brief  of  appel- 
lant, to  the  effect  .that  the  delivery  of  a  deed  does  not  necessarily  re- 
quire any  formal  act  on  the  part  of  the  grantor ;  that  it  is  often  a  ques- 
tion of  intention ;  that  a  deed  may  become  operative  while  the  manual 
possession  is  retained  by  the  grantor.  But  in  such  cases,  before  the 
court  can  find  a  delivery,  the  intention  to  consummate  the  transaction 
so  as  to  fully  vest  the  title  m  the  grantee  must  be  clearlv  shown^  and 
neither  the  findings  of  fact  by  the  referee  nor  by  the  superior  court, 
nor  the  evidence  in  the  case,  satisfies  us  that  the  grantor  in  the  deed 
under  consideration  ever  did  anything  with  the  intention  that  by  doing 
it  he  had  so  delivered  the  deed  as  to  make  it  presently  operative." 

What  was  lacking  in  the  Atwood  Case,  viz.,  the  intention  to  ronsiim- 
mate  the  transaction  so  as  to  fullv  vest  the  title  in  the  grantee,  was,  in 
our  opinion,  clearly  and  uripgniynrally  <;hnwn  in  thic;  raqp  The  will 
and  deed  were  executed  at  the  sarne  time  and  as  part  of  the  sam.e  trans- 
^ction.  The  real  property  was  "omitted  from  the  will,  no  doubt  ad- 
visedly, and  all  the  surrounding  circumstances  show  conclusively  that 
the  grantor  intended  to  convey  his  real  property  to  these  minors,  that 
the  deed  was  executed  for  that  purpose;  and  in  our  opinion  the  mere 
absence  of  an  acknowledgment  is  not  sufficient  to  defeat  his  expressgd 
intentions. 

TliirrL  Tlip  respondents  were  not  bona  fide  purchasers,  as  that  term^ 
is  understood  in  the  law!  The  rule  of  caveat  emptor  applies  in  all  its 
vigor  to  sales  by  administrators  or  executors  in  this  state,  and  the  pur- 
chaser acquires  only  the  interest  of  the  estate.  Towner  v.  Rodegeb,. 
33  Wash.  153,  74  Pac.  50,  99  Am.  St.  Rep.  936,  and  cases  cited. 

We  are  therefore  of  opinion  that  the  appellants  have  shown  a  clear 
title  to  the  lands  in  controversy,  as  against  the  respondents,  and  th.e 
judgment  of  the  court  below  is  accordingly j;eyersedj  with  directions  to 
enter  judgment  as  prayed  in  the  complaint. 

-jr. 


^4) 


Ch.  2)  EXECUTION  OF   DEEDS  305 

BURNETT  V.  BURNETT. 

(Supreme  Court  of  Michigan,  1S79,    40  Mich.  361.) 

Marston,  J.  The  bill  of  complaint  in  tliis  case  was  filed  for  the 
purpose  of  foreclosing  a  mortgage  alleged  to  have  been  everntprl  hy 
defendant  and  delivered  to  Calvin  T.  Burnett  now  deceased. 

Calvin  T.  Burnett  during  his  lifetime  resided  in  Washtenaw  county. 
He  was  the  o^yner  of  a  tract  of  land  in  Livingston  county,  upon  which 
the  defendant  and  his  sister  were  living.    It  is  claimed  on  behalf  of  the 
complainant  that  Calvin  T.,  wishing  to  divide  this  tract  between  de- 
fendant and  his  sister,  pursuant  to  an  agreement  previously  made,  had 
a  deed  of  conveyance  of  the  north  half  thereof  to  defendant  and  one 
of  the  south  half  to  nis  sister  prepared  at  Ann  Arbor;  that  he  and  his 
wife,  the  present  complainant,  took  said  deeds  and  visited  their  son      ' 
and  daughter  where  they  resided  upon  said  lands :    that  while  there 
and  upon  the  18th  day  of  February,  1873,  said  deeds  were  properly    (jU^^h  Jt^ 
executed,  and  that  at  the  same  time  two  mort^^age^.  one  from  defendant      ' 
and  one  from  his  sister  to  said  Calvin,  were  by  them  respectively  ex-  Tfe^   ii*.o-CZj 
ecuted  to  secure  certain  notes^  those  given  by  defendant  being  one  for  ^ 

$4,300,  being  the  one  in  controversy,  and  another  for  $4,000.  This 
second  note  under  a  separate  agreement  made  at  the  same  time  was  to 
be  considered  as  an  advance  to  the  defendant  towards  his  share  of  his 
father's  estate,  and  to  be  accounted  for  m  a  certain  manner. 

It  is  also  claimed  that  the  deeds,  mortgages  and  notes  were  at  the 
time  of  the  execution  thereof  retained  by  said  Calvin  T   who  was  to  djLuLt   ''»«■*-• 
have  the  same  recorded,  but  which  was  not  done.    Calvin  T.  Burj2£tt^    §  -g^" 

died  FebruaoL-^th«-lBZ7.     After  his  decease  the  deed  to  defendant  ^ 

was  offered  him  but  he  refused  to  accept  the  same,  and  the  administra- 
trix, on  February  14th.  1877.  caused  the  deed  and  mortgage  to  he  re- 
corded^ 

The  defendant  in  his  answer  admits  the  execution  of  the  notes  and 
mortgage ;  that  $500  oi  the  note  in  controversy  was  for  personal  prop- 
erty which  he  had  purchased  from  his  father ;  that  the  deed  executed 
by  his  father  to  him  of  the  land  was  not  delivered  nor  intended  to  be : 
that  his  father  was  to  keep  said  deed,  notes  and  rnortgage,  and  agreed 
not  to  record  the  same,  but  would  wait  and  see  how  defendant  man- 
aged the  property,  and  if  not  satistactory  that  the  papers  could  be  de- 
stroyed. 

The  evidence  is  conflicting.  Mrs.  Burnett,  the  complainant,  who  was 
present  at  the  time  the  papers  were  executed  says :  "My  husband  was 
to  take  care  of  the  papers  and  put  them  on  record  at  his  own  expense. 
He  was  to  see  that  they  were  put  on  record.  My  husband  took  them 
home  with  him."  She  farther  gives  as  a  reason  why  they  were  not  at 
the  time  placed  on  record,  was  that  they  v\^ere  to  go  home  by  way  of 
Howell  and  have  them  recorded,  but  the  sleighing  was  going  off  and 
Aig.Prop.— 20 


306  DERIVATIVE  TITLES  (Part  2 

they  got  home  as  quick  as  they  could.  She  farther  testif?ed  that  her 
husband  three  years  before  his  death  and  again  one  year  before,  toM 
her  that  if  the  papers  were  in  his  possession  at  the  time  of  his  death_,JjO-- 
have  them  recorded,  and  handed  over  to  the  proper  parties.  Mrs.  Bur- 
nett's daughter  Mrs.  Webster,  who  was  present  at  the  time  the  papers 
were  executed,  gives  the  same  version,  that  Calvin  T.  Burnett  ^wa'^  ^" 
take  the  papers,  have  them  recorded,  and  then  send  the  deeds  t^jjhe 
proper  persons,  the  grantees. 

The  justice  of  the  peace  who  took  the  acknowledgment  and  others 
who  were  present  and  who  on  other  occasions  had  conversations  with 
Calvin  T.  fully  sustained  the  position  set  up  in  the  answer  of  defend- 
ant. Which  under  all  circumstances  is  the  more  probable  and  correct 
view?  It  is  conceded  that  Calvin  T.  Burnett  was  a  good  and  prompt 
business  man,  while  defendant  was  somewhat  addicted  to  the  use  of 
intoxicating  liquors,  and  it  is  now  said  that  it  was  on  this  account  and 
to  prevent  the  defendant  from  squandering  the  property  that  thejleed 
and  mortgage  were  not  recorded.  It  is  clear  from  the  testimony  of 
Mrs.  Burnett  and  her  daughter  that  there  was  no  formal  delivery  o,f 
this  deed  to  the  defendant.  There  is  not  the  slightest  testimony  in  the 
case  tending  to  show  that  he  had  at  any  time  possession  or  control, of 
the  deed,  though  for  never  so  short  a  period.  All  we  have  then  from 
which  we  canfind  that  a  sufficient  delivery  was  made  is  the  staternent 
made  bv  the  grantor,  admitting  such  a  statement  to  have  been  made, 
that  he  would  retain  this  deed,  have  it  recorded  and  then  send  it  to 
the  grantee.  Had  this  been  done,  perhaps  no  question  would  have 
arisen.  This,  however,  he  did  not  do,  but  knowingly  retained  posses- 
sion of  all  the  papers  up  to  the  time  of  his  decease.  This  we  think  falls 
short  of  showing  a  delivery. 

It  is  said,  however,  that  defendant  took  and  remained  in  possession 
of  the  real  estate  and  made  payments  on  the  mortgage,  and  that  he  is 
thereby  estopped  from  disputing  the  validity  of  the  deed.  Prior  to  the 
execution  of  this  deed  defendant  was  in  possession  of  this  land,  under 
a  three  year's  lease  from  his  father.  He  continued  in  possession,  and 
the  payments  made  were,  we  think,  as  now  said  by  him,  to  have  been 
for  the  personal  property  which  he  purchased  and  in  payment  of  rent 
of  the  premises.  The  retention  of  all  these  deeds.  notes_and  mortgages 
bvCalvin  T.  Burnett  and  not  placing  them  on  record  is  consistent  ajid 
harmonizes  with  the  agreement  as  testified  to  by  the  justice  and  othgrs. 
and  IS  inconsistent  with  the  other  view.  From  an  examination  of  the 
evidence  in  the  light  of  all  the  surrounding  circumstances,  we  must 
come  to  the  cmiclusion  that  the  deed  was  not  delivered,  and  that  the 
agreement  was  in  substance  as  set  up  by  defendant  in  his  answer.  It 
follows,  therefore  that  the  decree  of  the  court  below  must  be  affirmed 
with  costs.  ^     ,      / ,  / 

Campbell,  C.  J.,  and  Graves,  J.,  concurred. 

CooLEY,  J.  It  appears  tliat  the  intestate  some  years  ago  made  an 
arrangement  under  which  he  deeded  land  to  George  F.  Burnett,  his 


Ch.  2)  EXECUTION   OF  DEEDS  307 

son,  of  which  about  one-half  the  estimated  value  was  to  be  an  advance- 
ment, and  for  the  remainder  the  son  was  to  give  a  ten*per  cent,  mort- 
gage. It  is  probable  from  the  evidence  that  the  father  planned  this 
arrangement  alone,  but  it  was  carried  out  by  the  parties  so  far  as  the 
execution  of  the  papers  was  concerned,  and  the  mortgage  was  executed 
by  the  son  with  accompanying  notes  and  delivered  to  the  father.  The 
only  question  concerning  the  transaction  is,  whether  the  deed  was  ever  y  ^ 

delivered. 

It  does' not  clearly  appear  that  the  deed  was  ever  placed  in  the  son's 
hands,  but  I  am  not  satisfied  that  at  the  time  any  of  the  parties  sup- 
posed the  transaction  remained  incomplete  and  unconsummated.  The 
father  who  lived  at  a  distance  from  the  place  where  the  papers  were 
executed,  took  the  deed  away  with  him  when  he  returned  home,  and  it 
was  found  unrecorded  among  his  papers  after  his  death.  His  widow 
testifies  that  he  took  it  merely  for  the  purpose  of  putting  it  upon  rec- 
ord, which  he  was  to  do  at  his  own  expense;  and  she  says  an  acci- 
dental circumstance,  which  she  explains,  prevented  his  going  to  the 
register's  office  on  his  return  home. 

The_.va.Lu£-QLthe  land,  has  depreciated  greatly  since  the  transaction, 
took  place,  and  on  the  death  of  the  father  it  is  found  not  to  be  for  the 
interest  of  the  son  and  daughter  to  claim  under  the  deeds  made  to  them 
by  the  father.  And  now  the  son  being  called  upon  to  pay  the  mort- 
gage he  gave  upon  the  land  described  in  the  deed  to  him,  he  refuses 
to  do  so,  and  insists  that  the  title  was  never  conveyed  to  him,  because 
the  deed  was  never  formally  delivered.  The  daughter  makes  no  ques- 
tion that  the  transaction  with  herself  was  complete,  and  as  a  witness 
in  the  case  she  gives  evidence  which  would  make  out  a  transaction 
equally  complete  between  her  father  and  her  brother,  this  defendant. 

There  are  two  facts  in  this  case  which  to  my  mind  are  more  conclu- 
sive than  all  the  testimony  of  witnesses  as  to  their  understanding  of 
the  purpose  of  the  parties  in  executing  such  writings.  One  is  that 
the  daughfer,  although  it  was  greatly  for  her  interest  to  take  the  same 
position  that  the  son  takes  here,  did  not  understand  she  was  at  liberty 
to  do  so,  but  admits  that  the  transaction  was  what  on  its  face  it  pur- 
ported to  be.  The  other  is  that  defendant  for  two  years  paid  in  full 
the  interest  on  his  mortgage,  thereby  admitting  its  validity  and  obliga- 
tion. And  it  seems  to  me  exceedingly  unsafe  to  set  aside  the  just  in- 
ferences from  such  unequivocal  acts  on  such  doubtful  and  contradic- 
tory evidence  as  we  have  concerning  what  took  place  when  the  papers 
were  executed.^* 

14  A.,  the  owner  of  lands,  desiring  to  make  provision  for  his  son,  directed  a 
lawyer  to  prepare  a  deed  of  such  lands.  The  deed  when  prepared  was  signed, 
sealed,  acknowledged,  and  witnessed,  and  at  request  of  A.  recorded  by  the  law- 
yer. After  the  lawyer  had  received  the  deed  back  from  the  recorder,  A.  told 
him  "to  keep  it  until  called  for."  The  son,  without  ever  learning  of  the  deed, 
died.  Shortly  thereafter  A.  called  for  the  deed  and  tore  his  name  oft.  The 
son's  widow  now  claims  the  land.  Who  is  entitled  thereto?  The  son  had  been 
living  on  the  land  with  his  father.  *^' 


308  DERIVATIVE  TITLES  (Part  2 

WHEELWRIGHT  v.  WHEELWRIGHT. 
tSupreme  Judicial  Court  of  Massachusetts,  1807.    2  Mass.  447, 3  Am,  Dec.  66.) 

The  petitioners  set  forth  that  the  said  Joseph  is  seised  in  fee  simple  of 
four  undivided  ninth  parts,  and  the  other  petitioners  of  two  undivided 
ninth  parts,  of  thirty-one  acres  of  salt-marsh  lying  in  Wells,  in  common 
with  the  said  Aaron  Wheelwright,  and^  they  pray  that  their  respective 
parts  may  be  set_oiiLtQ._the.m  in  severalty. 

The  respondent  pleads  in  bar  that  Samuel  Wheelwright,  grandfather 
of  the  respondent,  on  the  30th  day  of  January,  A.  D.  1700,  being  seised 
in  fee  of  the  premises,  made  his  last  will  in  writing,  which  was  after- 
wards duly  proved,  and  by  which  he  devised  the  premises  to  his  son, 
Joseph  Wheelwright,  father  of  the  respondent,  in  fee  tail  general,  who 
entered  and  was  seised,  and  from  whom  the  premises  descended  to 
the  respondent,  as  eldest  son  and  heir  in  tail  to  his  father, — and  trav-  ' 
erses  the  seisin  in  common  with  the  petitioners,  which  they,  in,  their 
replication,  affirm,  and  tender  an  issue  to  the  country,  which  is  joined 
by  the  respondent. 

Upon  trial  of  this  issue  before  Thatcher,  J.,  October  term,  A.  D. 
1805,  the  respondent  produced  the  last  will  of  Samuel  Wheelwright, 
by  which  it  was  admitted,  for  this  trial,  that  the  premises  were  devised 
in  tail  to  Joseph,  son  of  the  testator,  and  father  of  the  respondent,  and 
also  of  Joseph  W.,  one  of  the  petitioners,  and  of  the  husband  of  Mary 
W.,  another  of  the  petitioners,  and  grandfather  of  the  remaining  peti- 
tioners. It  was  also  admitted  that  the  respondent  was  the  heir  male  of 
Joseph,  his  father. 

The  petitioners  produced,  in  support  of  their  claim,  two  deeds  of 
the  said  Joseph,  bearing  date  May  4,  1795,  one  whereof  purported  to 
be  a  conveyance  of  four  ninth  parts  to  the  petitioner  Joseph,  and  the 
other  a  conveyance  of  two  ninth  parts  to  the  remaining  petitioners; 
and  they  relied  on  these  deeds  to  show  that  they  were  respectively 
seised,  in  fee  simple,  of  the  several  shares  so  conveyed.  Upon  produc- 
ing these  deeds  by  the  petitioners,  the  respondent  called  for  the  evi- 
dence of  their  execution  before  they  should  be  read.  Nathaniel  Wells, 
Esq.,  was  produced  as  a  witness,  who  testified  that,  in  the  year  1795, 
the  petitioner  Joseph  requested  him,  by  direction  from  his  father,  as 
he  said,  to  write  those  two  deeds.  Having  written  them,  on  the  4th  of 
May,  1795,  the  father  called  upon  him,  and  signed  and  sealed  the  two 
deeds  in  presence  of  the  witness  and  his  brother,  since  deceased,  and 
delivered  them  for  the  use  of  the  grantees,  and  that  he  and  his  brother 
subscribed  their  names  as  witnesses.  That  it  was  the  intent  of  the 
parties  that  the  grantor  should  have  the  use  of  the  premises  during  his 
life;  and  as  some  of  the  grantees  were  minors,  and  could  not  secure 
the  use  to  him,  that  tlie  deeds  were  delivered  as  escrows,  as  he_ex^ 
pressed  it,  to  be  delivered  by  him  to  the  grantees  'upon  the  death  of  the 
j^rantor,  which  the  witness  has  accordingly  done.     That  the  witness 


Ch.  2)  EXECUTION   OF  DEEDS  309 

understood  from  the  grantor  that  his  intent,  in  executing  the  deeds, 
was  to  prevent  the  entail  f  rpni  depriving  the  g£antees  of  the  land  con- 
veyed^ 

The  counsel  for  the  respondent  objected  to  the  reading  of  the  deeds 
to  the  jury  upon  this  evidence,  upon  the  ground  that  there  was  no 
proof  that  the  same,  or  either  of  them,  was  duly  executed  and  deliver- 
ed by  the  grantor  in  his  lifetime  to  either  of  the  grantees,  or  to  any 
person  authorized  by  them,  or  either  of  them,  to  receive  the  same; 
and  that  if  they  had  been  duly  executed  and  delivered,  they  were  not 
made  bona  fide^  but  merely  and  for  the  express_purpose  of  destroying 
the  entail  of_said- lands. 

lliejudge^oyerruled  the  objection,  permitted  the  deeds  to  go  in  evi- 
dence, and  directed  the  jury  that  they  were  sufficient  and  legal  evi- 
dence to  maintain  the  issue  on  the  part  of  the  petitioners.  After  a 
verdict  for  the  petitioners,  the  respondent's  counsel  filed  exceptions  to 
the  above  opinion  and  direction  of  the  judge,  which  were  allowed  and 
signed  pursuant  to  the  statute,  and  at  the  last  July  term  of  the  Court, 
the  question  of  the  validity  of  those  exceptions  came  on  to  be  argued. 

Parsons,  C.  J.,  (who  stated  the  history  of  the  cause,  and  proceeded.) 
The  right  which  the  father  of  the  respondent  had  to  convey  any  of 
the  lands  he  held  in  tail  must  be  derived  from  the  statute  of  March 
8,  1792.  By  that  statute  it  is  made  lawful  for  any  person  of  full  age, 
seised  in  fee  tail  of  any  lands,  by  deed  duly  executed  before  two  sub- 
scribing witnesses,  acknowledged  before  the  vSupreme  Judicial  Court, 
Court  of  Common  Pleas,  or  a  justice  of  the  peace,  and  registered  in 
the  records  of  the  county  where  the  lands  are,  for  a  good  or  valuable 
consideration,  bona  fide  to  convey  such  lands,  or  any  part  thereof,  in 
fee  simple,  to  any  person  capable  of  taking  and  holding  such  estate; 
and  such  deed,  so  made,  executed,  acknowledged,  and  registered,  shall 
bar  all  estates  tail  in  such  lands,  and  all  remainders  and  reversions  ex- 
pectant thereon. 

From  inspecting  the  deeds  produced  in  evidence  in  this  cause,  it 
appears  that  two  subscribing  witnesses,  to  whose  credibility  no  objec- 
tion is  made,  have  certified  that  they  were  signed,  sealed,  and  deliv- 
ered, in  their  presence.  And  it  further  appears  that  the  grantor,  on 
the  same  day,  acknowledged  that  each  instrument  was  his  deed  before 
a  justice  of  the  peace. 

One  objection  made  by  the  respondent  is,  that,  admitting  the  deeds 
to  have  been  executed  in  the  form  and  manner  required  by  the  statute 
in  this  case,  yet  these  conveyances  are  not  bona  fide,  being  made,  not 
for  a  valuable  consideration,  but  for  the  purpose  of  depriving  the  heir 
in  tail  of  his  inheritance.  The  deeds  purport  to  be  for  a  valuable  con- 
sideration in  money,  and  for  love  and  affection. to  his  issue,  which 
is  a  good  consideration.  The  statute  also  provides  that  the  convey- 
ance may  -be  on  good  consideration.  It  is  therefore  very  clear  that 
the  statute  intended  that  the  tenant  in  tail  might  bar  the  heir  in  tail, 
by  deed  conveying  the  land  to  his  relatives,  executed  for  a  good  al^ 


310  DERIVATIVE  TITLES  (Part  2 

though  not  a  valuable  consideration.  This  he  might  do  by  a  common 
recovery ;  and  this  method  by  deed  is  substituted  by  the  statute  in  the 
place  of  that  common  assurance,  the  effect  of  which  is  founded  on  legal 
fictions.  And  it  is  certain  that  justice,  or  parental  affection,  will  often 
induce  parents  who  hold  their  lands  in  tail  to  make  provision  for  the 
younger  branches  of  their  family  out  of  the  entail.  As  the  statute 
has  made  the  estate  tail  assets  for  the  payment  of  the  debts  of  the  ten- 
ant, before  and  after  his  decease,  a  bona  fide  conveyance  was  required 
by  the  statute,  to  prevent  alienations  to  defraud  creditors,  and  not  to 
protect  the  heir  in  tail.     This  objection  cannot  prevail. 

The  other  objection  is  that,  by  the  statute,  the  conveyance  should 
be  completed,  and  the  estate  pass,  in  the  lifetime  of  the  tenant  in  tail, 
and  that  the  deed  should  be  sealed,  delivered,  and  acknowledged,  by 
him  as  his  deed ;  that,  in  the  case  at  bar,  the  deeds  were  delivered  by 
the  grantor  to  Judge  Wells,  not  as  his  deeds,  but  as  his  writings  or 
escrows,  to  be  delivered  as  his  deeds  by  the  judge  to  the  grantees  on 
his,  the  grantor's  death ;  that  they  could  have  no  effect  until  delivered 
by  the  judge  accordingly;  and,  as  the  grantor  was  dead  before  the 
second  delivery,  they  were  never  his  deeds,  but  are  void. 

This  objection  seemed  to  deserve  much  consideration.  The  statute 
certainly  intended  that  the  conveyance  of  the  estate  tail  should  be 
executed  in  the  lifetime  of  the  tenant ;  and  therefore,  if  there  be  no 
acknowledgment  of  the  deed  by  him,  the  defect  cannot  be  supplied  by 
the  testimony  of  the  subscribing  witnesses  after  his  death,  as  it  may  be 
in  conveyances  of  estates  not  entailed.  The  reason  is,  as  common  re- 
coveries must  be  suffered  in  the  lifetime  of  the  tenant  in  tail,  and  at  a 
court  holden  at  stated  times,  and  the  heir  in  tail  has  a  chance  that  the 
tenant  may,  after  the  commencement  of  the  suit,  die  before  the  term, 
so  it  was  intended  to  leave  him  the  chance  of  the  tenant's  dying  before 
acknowledgment,  which,  as  the  statute  was  first  drawn,  could  be  made 
only  in  some  court  of  record ;  although,  as  it  was  amended,  it  may 
now  be  made  before  a  justice  of  the  peace.  There  is  therefore  some 
chance  saved  to  him,  but  of  much  less  consequence  than  it  was  before 
the  bill  was  amended. 

The  law,  so  far  as  it  relates  to  the  nature  of  this  objection,  is  very 
well  settled.  /  If  a  grantor  deliver  any  writing  as  his  deed  to  a  thirxT 
person,  to  be  delivered  over  by  him  to  the  grantee,  on  some  future  event, 
it  is  the  grantor's  deed  presently,  and  the  third  person  is  a  trustee  of 
it  for  the  grantee ;  and  if  the  grantee  obtain  the  writing  from  the  trus- 
tee before  the  event  happen,  it  is  the  deed  of  the  grantor,  and  he 
cannot  avoid  it  by  a  plea  of  non  est  factum,  whether  generally  or  spe^^ 
daily  pleaded.  This  appears  from  Perk.  143,  144,  and  from  the.  case 
of  Bushell  V.  Pasmore,  6  Mod.  217,  218.  But  if  the  grantor  make 
a  writing,  and  seal  it,  and  deliver  it  to  a  third  person,  as  his  writing 
or  escrow,  to  be  by  him  delivered  to  the  grantee,  upon  some  future 
event,  as  his,  the  grantor's  deed, — and  it  be  delivered  to  the  grantee 
accordingly, — it  is  not  the  grantor's  deed  until  the  second  delivery; 


Ch,  2)  EXECUTION   OP   DEEDS  311 

and  if  the  grantee  obtain  the  possession  of  it  before  the  event  hap- 
pen, yet  it  is  not  the  grantor's  deed,  and  he  may  avoid  it  by  pleading 
non  est  factum.     This  appears  from  Perk.  142,  137,  138. 

It  is  generally  true  that  a  deed  delivered  as  an  escrow,  to  be  deliv-    , 
ered  over  as  the  deed  of  the  party  making  it,  on  a  future  event,  takes 
its  effect  from  the  second  delivery,  and  shall  be  considered  as  the  deed 
of  the  party  from  that  time.    Perk.  143,  144. — 3  Co.  35,  b,  36,  a.^_ 

Whether  the  deeds  in  this  case  were  delivered  to  Judge  Wells  as 
writings  to  be  delivered  over  as  the  grantor's  deeds  on  his  death,  or 
whether  they  were  delivered  as  the  deeds  of  the  grantor  to  Judge 
Wells,  in  trust  for  the  grantees,  to  be  delivered  to  them  on  the  gran- 
tor's death,  is  a  question  of  fact,  to  be  determined  by  the  evidence. 
This  evidence  results  from  the  testimony  of  Judge  Wells,  and  from  the 
inspection  of  the  deeds.  The  deeds  appear  to  have  been  signed,  sealed, 
and  delivered,  in  the  presence  of  two  subscribing  witnesses,  and  to 
have  been  acknowledged  as  the  deeds  of  the  grantor  before  a  justice 
of  the  peace.  The  witness  swears  that  the  grantor  did  then  sign,  seal, 
and  deliver,  them  for  the  use  of  the  grantees.  Thus  far  there  can  be  no 
doubt.  But  the  witness  further  testifies  that,  because  the  grantor  was 
to  have  the  use  of  the  premises  during  his  life,  and  some  of  the  grantees 
being  minors,  the  deeds  were  delivered  tohim  as  escrow^  to  be  delivered 
to  the  grantees  upon  the  grantor's  death.  What  the  witness  understood 
by  escrow  is  not  explained.  He  might  consider  them  as  escrows,  be- 
cause he  was  to  have  the  custody  of  them  until  the  grantor's  death. 
To  aid  his  memory,  he  therefore  refers  us  to  the  memorandum  he 
made,  at  the  time,  upon  the  wrapper  of  the  deeds.  In  that  memoran- 
dum they  are  called  the  two  deeds  of  the  grantor,  naming  him,  to 
the  grantees,  naming  them,  to  be  kept  until  the  death  of  the  gran'tor, 
and  then  to  be  delivered  to  the  grantees.  Here  they  are  not  called  the 
writings,  or  escrows,  but  the  deeds,  of  th«  grantor.  The  weight  of  the 
evidence  is  certainly  very  great,  if  not  conclusive,  in  favor  of  the  deeds 
having  been  delivered  by  the  grantor,  as  his  deeds,  and  deposited  with 
Judge  Wells,  in  trust  for  the  grantees.  Upon  this  ground  the  deeds 
were  very  properly  admitted  as -evidence,  and  the  direction  of  the 
judge  was  correct. 

But  if  the  deeds  are  to  be  considered  as  delivered  to  Judge  Wells, 
not  as  the  deeds,  but  as  the  writings,  of  the  grantor,  we  must  not 
thence  conclude  that  they  are  void,  ^l^lthoiigh  generally  an  escrow  / 
takes  its  effect  from  the  second  delivery,  yet  there  are  excepted  cases, 
in  which  it  takes  its  effect,  and  is  considered  the  deed  of  the  maker, 
from  the  first  delivery.  The  exception  is  founded  on  necessity,  ut 
res  valeat.  Thus  Perk.  139,  140.  If  a  feme  sole  seal  a  writing,  and 
deliver  it  as  an  escrow,  to  be  delivered  over  on  condition,  and  she  aft- 
erwards marry,  and  the  writing  be  then  delivered  over  on  perform- 
ance of  the  condition,  it  shall  be  her  deed  from  the  first  delivery ;  oth- 
erwise, her  marriage  would  defeat  it.  In  Brook's  Reading,  on  the  stat- 
ute of  limitations,  p.  150,  there  is  another  exception.     A.  delivers  a 


312  DERIVATIVE  TITLES  (Part  2 

deed,  as  an  escrow,  to  J,  S.,  to  deliver  over  on  condition  performed, 
before  which  A.  becomes  non  compos  mentis ;  the  condition  is  then  per- 
formed, and  the  deed  dehvered  over;  it  is  good,  for  it  shall  be  A.'s 
deed  from  the  first  delivery.  Another  exception  is  in  3  Co.  35,  b,  36,  a. 
Lessor  makes  a  lease  by  deed,  and  delivers  it  as  an  escrow,  to  be  de- 
livered over  on  condition  performed,  before  which  lessor  dies,  and 
after,  it  is  delivered  over  on  condition  performed :  the  lease  shall  be 
the  deed  of  the  lessor  from  the  first  delivery.  There  is  also  a  strong 
exception  in  5  Co.  85.  If  a  man  deliver  a  bond  as  an  escrow,  to  be 
delivered  on  condition  performed,  before  which  the  obligor  or  obligee 
dies,  and  the  condition  is  after  performed — here  there  could  be  no  sec- 
ond delivery,  yet  is  it  the  deed  of  the  obligor  from  the  first  delivery, 
although  it  was  only  inchoate ;  but  it  shall  be  deemed  consummate  by 
the  performance  of  the  condition. 

/  Therefore,  if  the  deeds  in  this  case  were  delivered  to  Judge  Wells 
s  escrows,  and  by  him  delivered  over  on,  the  death  of  the  grantor,  they 
(must  take  their  effect,  and  be  considered  as  the  deeds  of  the  grantor, 
I  from  the  first  delivery,  he  being  dead  at  the  second  delivery.  And 
the  cases  in  3  Co.  36,  a,  and  5  Co.  85,  are  in  point.  It  may  here  be 
observed,  that  it  is  not  to  be  presumed  that  it  was  the  intention  of  the 
grantor  to  deliver  these  deeds  as  escrows,  to  be  after  delivered  as 
his  deeds,  on  the  event  of  his  death;  when,  from  the  nature  of  the 
event,  they  could  not  be  considered  as  his  deeds  from  the  second  de- 
livery. The  presumption  is  violent  that  he  considered  Judge  Wells  as  a 
trustee  of  the  grantees.  But  whether  the  deeds  were  delivered  to  him 
as  escrows,  or  in  trust  for  the  grantees, — in  either  case  the  verdict 
must  stand,  and  the  first  judgment  be  entered  thereon,  viz.,  that  parti- 
tion be  made;  and  let  a  warrant  issue  to  commissioners  to  make  par- 
tition." 


k 


RUGGLES  V.  LAWSON. 

(Supreme  Court  of  New  York,  1816.     13  Johns.  285,  7  Am.  Dec.  375.) 

This  was  a  suit  in  partition,  tried  before  his  honor  the  Chief  Jus- 
tice, at  the  Orange  circuit,  in  September,  1814. 

The  plaintiff,  in  his  petition,  set  forth,  that  he  was  seised,  in  fee, 
as  tenant  in  common,  of  an  undivided  moiety  of  the  premises  in  ques- 
tion ;  and  that  Daniel  Lawson  and  others,  defendants,  as  heirs  at  law 
of  Robert  Thomson,  Jun.,  deceased,  were  each  seised  of  an  equal  and 
undivided  twentieth  of  the  premises,  and  the  widow  of  Robert  Thom- 
son was  entitled  to  her  dower  in  the  one  third  of  the  said  ten  twen- 
tieths of  the  premises,  of  which  the  heirs  of  the  said  Robert  Thomson 
were  so  seised.  Several  of  the  defendants  put  in  pleas  of  confession, 
and  consented  to  the  partition.  Robert  Thomson  and  Nelson  Thom- 
son, two  of  the  defendants,  pleaded  non  tenent  insimul,  and  gave  no- 
lo See  Wells  v.  Wells,  132  Wis.  73,  111  N.  W.  1111  (1907). 


Ch.  2)  EXECUTION   OF   DEEDS  313 

tice,  under  the  plea,  that  they  would  prove,  at  the  trial,  that  they 
were  entitled,  in  their  own  right,  to  one  half  of  the  premises,  and  that 
they  claimed  title  to  the  same,  by  virtue  of  a  conveyance  to  them, 
dated  the  15th  of  November,  1811,  from  their  father,  Robert  Thomson, 
(setting  forth  the  deed  at  length.) 

At  the  trial,  it  was  admitted  that  the  plaintiff  was  seised,  in  fee,  of 
an  undivided  moiety  of  the  premises. 

Robert  and  Nelson  Thomson,  two  of  the  defendants,  gave  in  evi- 
dence the  deed  set  forth  in  the  notice  accompanying  their  plea.  The 
deed  was  given  for  natural  love  and  affection  of  the  grantor  to  his  two 
sons,  and  for  the  further  consideration  of  one  dollar,  and  conveyed 
an  undivided  moiety  of  the  premises.  David  Mason,  a  witness,  proved, 
that,  in  June,  1814,  the  grantor,  being  sick,  took  from  his  chest  the 
deed  in  question,  among  other  deeds  to  his  children,  which  he  delivered 
to  the  witness,  and,  at  the  same  time,  directed  him,  in  case  he  should 
die  before  making  his  will,  which  he  had  requested  the  witness  to 
draw  up  for  him,  that  he,  the  witness,  would  deliver  the  deeds  to 
his  children,  respectively ;  the  witness  having  retired,  for  a  short  time, 
to  prepare  the  will  of  the  grantor,  on  his  return,  found  him  dead ; 
and  about  a  month  after  his  decease,  the  witness  delivered  the  deeds 
to  the  grantees  named  therein. 

A  verdict  was  taken  for  the  plaintiff,  subject  to  the  opinion  of  the 
Court,  on  a  case  which  was  submitted  to  the  Court  without  argument. 

Per  Curiam.  The  only  question  in  this  case  relates  to  the  effect 
and  operation  of  the  deed  from  Robert  Thomson,  Jun.,  to  his  two 
sons,  Robert  and  Nelson.  This  deed  was  duly  executed  by  the  grantor, 
in  his  lifetime,  and  delivered  to  a  third  person,  to  be  delivered  to  the 
grantees,  in  case  the  grantor  should  die  before  having  made  and  exe- 
cuted his  will.  The  grantor  did  die  without  having  made  any  will,  and 
the  deed  was,  after  his  death,  delivered  to  the  grantees.  If  this  deed 
is  to  be  considered  as  an  escrow,  the  estate,  under  the  circumstances 
stated  in  the  case  passed  to  the  grantees,  upon  the  delivery  after  the 
death  of  the  grantor.  It  is  a  well-settled  rule  with  respect  to  an  es- 
crow, that,  if  either  of  the  parties  die  before  the  condition  is  per- 
formed, and,  afterwards,  the  condition  is  performed,  the  deed  is  good, 
and  will  take  effect  from  the  first  delivery.  Shep.  Touch.  59.  It  may, 
however,  be  questionable  whether  this  deed  is  to  be  viewed  as  an 
escrow ;  the  grantees  had  nothing  to  do,  on  their  part,  in  order  to  make 
the  deed  absolute,  which  is  usually  the  case  where  a  deed  is  delivered 
as  an  escrow.  The  delivery  here  was,  at  all  events,  conditional,  and 
to  become  absolute,  upon  an  event  which  has  taken  place;  and,  as  in 
the  case  of  an  escrow,  the  deed  will  take  effect  from  the  first  deliv- 
ery. This  principle  is  very  fully  laid  down  and  illustrated  in  the  cases 
of  Wheelwright  v.  Wheelwright,  2  Mass.  447,  3  Am.  Dec.  66,  and 
Hatch  V.  Hatch,  9  Mass.  307,  6  Am.  Dec.  dl .  The  grantees  in  this 
deed  are,  therefore,  entitled  to  a  moiety  of  the  premises,  and  par- 
tition must  be  made  accordingly. 


M^ 


314  DERIVATIVE  TITLES  (Part  2 

JOHNSON  V.  JOHNSON. 
(Supreme  Court  of  Rhode  Island,  1903.    24  R.  I.  571,  54  Atl.  378.) 

TiLLiNGHAST,  J.  The  Only  question  presented  for  our  decision  by 
the  bill,  answer  and  proof  in  this  case  is  whether  the  deed  under  which 
the  respondent  claims  title  to  the  real  estate  described  in  tlie  bill  was  so 
deposited  or  left  with  the  witness  Charles  P.  Moies  by  the  grantor,  dur- 
ingher  lifetime,  as  to  constitute  an  absolute  delivery  thereof  for  the 
use  and  benefit  of  the  grantee. 

The  material  facts  in  the  case  are  these:  On  May  9,  1899,  Mary- 
Johnson  made  and  executed  a  quitclaim  deed  of  the  premises  referred 
to,  to  the  respondent,  Marv  A.  Johnson,  and  left  it  with  said  Charles 
P.  Moies,  with  direction  that  in  case  anything  happened  to  her  (she 
meaning  thereby,  as  Moies  understood  it,  that  in  case  she  should  die), 
he  should  then  deliver  the  deed  to  her  daughter,  said  Mary  A  John- 
son. _  -He  did  not  understand,  however,  from  the  instructions  given  him, 
that  the  grantor  intended  by  said  acts  to  place  the  deed  beyond  her 
control,  but,  on  the  contrary,  he  understood  that  she  retained  the  right 
to  recall  the  deed  at  any  time,  and  also  that  she  retained  the  right  to 
sell  and  dispose  of  the~property  thereafterwards  if  she  saw^t.  In 
short,  the  substance  of  Moies  understanding,  from  the  instructions 
given  him,  was  that  the  deed  was  left  with  him  subject  to  the  control 
of  the  grantor  during  her  life,  and  that  in  case  of  her  dp^th,  without 
having  disposed  of  the  property,  he  was  to  deliver  the  deed  to_the 
grantee  named  therein.  ^ 

The  grantor  continued  to  exercise  dominion  over  said  real  estate 
up  to  the  time  of  her  death,  which  occurred  on  the  13th  day  of  No- 
vember, 1901.  She  advertised  it  for  sale,  and  in  other  ways  attempted 
to  effect  a  sale  thereof ;  she  paid  the  taxes,  collected  the  rents,  and 
paid  the  interest  on  the  mortgage  thereon,  and  generally  treated  the 
estate  as  her  absolute^  property.  After  her  death  said  deed  was  de- 
livered to  the  grantee  by  Moies,  and  by  her  caused  to  be  recorded  in 
the  registry  of  deeds  in  Pawtucket.  And  the  complainants  now  seek  by 
this  bill  to  have  said  deed  set  aside  and  declared  void  and  of  no  effect, 
on  the  ground  that  no  ^livery  thereof  was  ever  effected  by  the 
gj^ntor. 

In  view  of  the  facts  aforesaid,  we  are  of  the  opinion  that  said  deed 
was  ineffectual  to  pass  any  title  to  the  estate. 

Inorder  to  convey  title  to  real_estate,  it  is  necessary  that  the  deed 
thereof  shall  be^ deiivere3^o  the  grantee. or  to  some  one  for  his  use. 
And  the  ordinary  test  of  delivery  if:  Did  the  grantor  by  his  acts  or 
words,  or  both,  intend  to  divest  himself  of  the  title  to  the  estate  de- 
scribed in  the  deed_^  If  so,  the  deed  is  delivered.  But  if  not,  there 
is  no  delivery,  and  hence  no  title  passes.  See  Am.  &  Eng.  Ency.  Law, 
vol.  9  (2d  Ed.)  154-158;    Brown  v.  Brown,  66  Me.  316.     In^iXikJ^-Lo 


k«-owc7  J^ 


Ch.  2)  EXECUTION   OF  DEEDS  315 

constitute  a  delivery,  the  grantor  must  absolntplv  n^^tt  "^^'^^  the  pos- 
session and  control  of  the  instrument.  Younge  v.  Guilbeau,  3  Wall. 
636,  18  L.  Ed.  262;  Hawkes  vTPike,  105  Mass.  562,  7  Am.  Rep.  554. 

That  a  deed  may  be  effectual  to  convey  title,  although  delivered  to 
a  third  person  to  hold  until  the  grantor's  death,  and  then  to  deliver 
it  to  the  grantee,  there  can  be  no  doubt.  But  in  order  to  make  such 
a  deliverv  valid,  the  deed  must  be  left  with  the  depositary  without  any 
reservation  on  the  part  of  the  grantor,  either  express  or  implied,  of  ^y\Jb  y\jLAJL^^ 
the  tight  to  recall  it  or  otherwise  to  control  its  use.  Walter  v.  Way, 
170  111.  96,  48  N.  E.  421 ;  Foster  v.  Mansfield,  3  Mete.  (Mass.)  412, 
37  Am.  Dec.  154.  In  other  words,  in  order  to  make  a  delivery  of  a 
deed  valid  when  it  is  made  to  a  third  person  for  the  benefit  of  the 
grantee,  such  delivery  must  be  an  absolute  one  on  the  part  of  the  gran- 
tor;  that  is,  he  must  divesthimself  of  any  right  of  future  control 
thereof.  And  if  such  control  is  retained  by  the  grantor,  no  estate 
passes. 

The  law  relating  to  delivery  of  a  deed  is  well  stated  in  Prutsman 
v.  Baker,  30  Wis.  644,  1 1  Am.  Rep.  592,  as  follows :  "To  constitute  de- 
livery good  for  any  purpose,  the  grantor  must  divest  himself  of  all 
power  and  dominion  over  the  deed.  To  do  this  he  must  part  with 
the  possession  of  the  deed  and  all  right  and  authority  to  controMt, 
ekher  finally  and  forever,  as  where  it  is  given  over  to  the  grantee  him- 
self, or  to  some  person  for  him,  which  is  called  an  absolute  deliveiTi 
or  otherwise  he  must  part  with  all  present  or  temporary  right  of  posses- 
sion and  control  until  the  happening  of  some  future  event  or  the  per- 
formance of  some  future  condition,  upon  the  happening  or  not  hap- 
pening, or  performance  or  non-performance  of  which,  his  right  of 
possession  may  return  and  his  dominion  and  power  over  the  deed  be 
restored;  in  which  case  the  delivery  is  said  to  be  contingent  or  con- 
ditional. An  essential,  characteristic,  and  indispensable  feature  -of 
every  deliverv.  whether  absolute  or  conditional,  is  that  therip  must  be 
a  parting^  with  the  possession,  and  of  tTle  power  and  contrnj^nver  the 
Qeea  Dv  the  grantor  for  the  benefit  of  the  grantee,  at  the  time  of  de- 
liverx:.  Porter  v.  Woodhouse,  59  Conn.  568  [22  Atl.  299,  13  L.  R.  A. 
64,  21  Am.  St.  Rep.  131]  ;  Baker  v.  Haskell,  47  N.  H.  479  [93  Am. 
Dec.  455]." 

In  the  case  at  bar  the  evidence  shows  that  while  there  yyas  a  parting  a  ^  </^ 
with  the  manual  possession  of  the  deed  by  the  grantor,  she  did  not  -"T^  »  ]_L/ 
part  with  the  control  thereof  j  and  hence  a  very  essential  element  of  a*^  X*»>  >*^ 
delivery  was  lacking.  aJ^-*-^  * 

Her  intended  disposition  of  the  property  was  evidently  of  a  testa- 
mentary character.  "In  case  she  died,"  as  Moies  testifies,  "she  wanted 
the  property  to  go  that  way."  Bjit  an  instrument  which  is  intended  to 
operate  as  a  will,  without  being  executed  in  accordance  with  the  pro- 
visions of  the  statute  relating  thereto  (Ggn^JLaws  1896,  R.  I.  c.  203), 
cannot  be  allowed  to  have  the  effect  of  a  will.    See  Providence  Insti- 


316  DERIVATIVE  TITLES  (Part  2 

tution  for  Savings  v.  Carpenter,  18  R.  I.  287,  27  Atl.  337,  and  Coulter 
V.  Shelmadine,  204  Pa.  120,  53  Atl.  638. 

For  the  reasons  above  given,  the  deed  in  question  must  be  set  aside 
and  declared  null  and  void  and  of  no  eftecE    Decree  accordingly.^* 


MOORE  v.  TROTT. 

(Supreme  Court  of  California,  1909.     156  Cal.  353,  104  Pac.  578,  134  Am.  St. 

Rep.  131.) 

BivATTY,  C.  J.  This  is  an  action  to  quiet  title  to  certain  lands  for- 
merly the  property  of  Patrick  Moore,  deceased.  The  plaintiff  is 
Moore's  widow  and  administratrix,  and  the  defendant,  Mrs.  George 
Trott,  is  thejerson  named  as  grantee  of  said  lands  in  two  deeds  which, 
y  y  _im>-tfer-tg!TtTv<fay  of  ]\Tay7l9Q6,  were  mailed  by  Moore  to  P.  O.  Tiet- 
^'^"'^zen.  cashier  of  the  bank  at  Santa  Maria,  under  cover  with  the  follow- 
ing letter: 

"Arroyo  Grande,  ^lay  10th,  1905. 

"Mr.  P.  O.  Tietzen — Dear  Sir  and  Friend:  I  am  sending  you  some 
deeds  to  lands  that  I  have  made  to  be  delivered  to  the  parties  in  case 
of  my  not  returning  from  the  California  Hospital  Los  Angeles  where 
I  am  going  for  to  have  an  operation  performed  I  also  enclose  you 
1000  shares  of  Pinal  stock  to  be  turned  over  to  Annie  Gray  for  the 
purpose  of  paying  for  her  education  at  Berkley  and  would  like  very 
much  if  you  would  take  charge  of  it  for  her  and  see  that  she  gets  it 
all  right.  Tbe  deeds  that  I  am  sending  you,  vou  will  please  lock  them 
in  your  safe  and  in  case  I  should  die  to  immediately  hand  themto 

y^  i^f.  Callerand  v.  Plot,  241  111.  120,  89  N.  E.  266  (1909). 

C^n  Belden  v.  Carter,  4  Day  (Conn.)  66.  4  Am.  Dec.  1S5  (1S09),  deeds  were  hand- 
ed by  ttie  g-rantor  to  a  tbird  party  with  these  instructions :  "'l]ake_£h£ae_d£.eds, 
and  Iveep  tbem ;  if  I  never  call  for  tliem.  deliver  over  nne  to  "Pamela,  and  the 
other  to  Is'oDie,  alter  my  death;  if  I  call  for  them,  deliver  them  up  to  nie?^  ^The 
grantor  died  without  having  called  tor  the  deeds.  The  court  held  that  there 
had  been  a  valid  delivery.  Morse  v.  Slason,  13  Vt.  296  (lv<^41) ;  Lippold  v.  Lip- 
pold,  112  Iowa,  134,  S3  JSI.  W.  809,  84  Am.  St.  Rep.  331  (1900) ;  Henry  v.  Phil- 
lips, 105  Tex.  459,  151  S.  W.  533  (1912),  dictum,  ace.  But  see  Grillev  v.  Atkins, 
78  Conn.  380,  62  Atl.  337,  4  L.  R.  A.  (N.  S.)  816,  112  Am.  St.  Rep.  152  (1905). 

"In  Shed  v.  Shed  et  al..  3  N.  H.  432  (1S26)  where  A.  made  an  instrument  pur- 
porting to  convey  to  his  two  sous,  B.  and  C,  certain  tracts  of  land,  with  a  res- 
ervation of  the  use  of  the  land  to  himself  during  his  life,  and  delivered  the 
instrument  to  D.  to  be  delivered  to  B.  and  C.  as  his  deed,  after  his  decease,  in 
ease  he  should  not  otherwise  direct;  and  A.  died  without  giving  any  further 
directions,  it  was  held  that  the  instrument  was  to  be  considered  as  the  deed 
of  A.  from  the  hrst  delivery,  and  that  it  might  operate  as  a  covenant  by  A.  to 
stand  seised  of  the  land  to  his  own  use  during  life,  remainder  to  B.  and  C. 
in  fee.  *  *  *  The  decision  in  that  case  would  appear  to  be  in  point  for  the 
dj^endant,  but_w£_ao  not  nnd  any  ^thih-  ciiHk^  in  iim'  h\\'i'\  Renorts,~anfl  fmrmn^ 
o^two  m  otners.  which  go  to  that  extent.  On  the  other  hand,  there  are  many 
alitnonties  w'hich  seem  to  us  to  establish  a  somewhat  different  rule."  Cook 
v.  Brown,  34  N.  H.  400,  472  (1857),  per  Eastman,  J.  The' court  overniled  Shed 
V.  Shed.  See  Brown  v.  Brown,  66  Me.  316  (1876) ;  Felt  v.  Felt,  155  Mich.  237, 
lis  N.  W.  953  (1908),  ace. 


Ch.  2)  EXECUTION   OF   DEEDS  31T 

thg  parties  named  telling  them  to  put  them  of  record  as  soon  as  pos- 
sjble. 

"The  other  Pinal  receipt  for  stock  I  think  is  in  your  bank  if  so  send 
it  to  me  to  the  California  Hospital  and  I  will  endorse  and  return  to  you 
as  security  for  my  indebtedness  to  your  bank.  I  am  going  to  start  to- 
day and  I  presume  I  will  be  there  one  or  two  days  before  they  op- 
erate on  me  so  if  you  mail  that  other  certificate  to  me  I  will  endorse 
and  return  it  to  you.  You  will  please  keep  to  yourself  the  names  of 
the  parties  named  in  those  deeds  until  you  deliver  them.  After  I  pass 
in  my  checks  and  take  flight  for  the  other  world  from  wdience  none 
return. 

"Yours,  Pat  Moore." 

Immediately  after  mailing  this  letter  Moore  went  to  Los  Angeles 
where  the  contemplated  operation  was  performed.  Towards  the  end 
of  May  he  was  able  to  return  to  his  home  at  Arroyo  Grande  and  to 
transact  various  business  matters  there  and  in  San  Luis  Obispo,  where 
he  went  to  attend  the  June  session  of  the  board  of  supervisors,  of 
which  he  was  a  member.  But  his  health  rapidly  declined  and  on 
the  _18th  of  Tune  he  died  without  ever  having  communicated  to  Tietzen 
any  other  instruction,  oral  or  written,  than  those  contained  m  his  letter 
of  May  IQth.  On  June  22d  Tietzen  delivered  the  two  deeds  in  ques- 
tion to  Mrs.  Trott^  who  filed  them  for  record  on  the  23d.  The  sole 
question  in  the  case  is  whether  these  deeds  were  so  delivered  _as  to 
pass  the  title  to  the  lands  in  controversy  to  the  defendant,  Mrs.  Trott, 
or  whether  they  remained  inoperative  for  want  of  delivery. 

It  was  found  by  the  superior  court  "That  at  the  tnne  said  Patrick 
Moore  delivered  said  deeds  to  the  said  P.  O.  Tietzen  as  herein  found 
he  parted  with  all  dominion  over  said  deeds  and  each  of  them  and  *  ^y  '-y 
reserved  no  right  to  recall  or  any  wav  control  said  deeds  or  either  of  CA-y€/'^''V-C4A...<^ 
them.  That  said  deeds  were  delivered  absolutely."  Upon  this  and 
other  sufficient  findings  judgment  was  entered  in  favor  of  the  defend- 
ants, and  plaintiff  appeals  from  the  order  denying  her  motion  for 
a  new  trial,  her  principal  contention  being  that  the  finding  here  quoted 
is  not  sustained  by  the  evidence. 

It  has  been  thoroughly  established  as  the  law  of  this  state  by  a  se- 
ries of  decisions  commencing  with  Bury  v.  Young,  98  Cal.  446,  33  Pac. 
338,  35  Am.  St.  Rep.  186,  that  a  valid  transfer  of  a  fee  simple  estate, 
subject  to  a  life  estate  in  the  grantor,  may  be  effected  by  means  of  a 
deed_  delivered  _bv  the  grantor  to  a  third  party  with  instructions  to 
deliver  it  to  the  grantee  at  his,  the  grantor's  death,  provided  always — 
and  this  is  the  essential  condition  of  the  validity  of  such  transfers- 
that  the  delivg|jjyg.^,a]^^';0^utg  so  that  the  deed  is  placed  bevnnd  the  power 
ot  the  grantorto_x£call  or  control  it  in  any  event.  The  finding  of 
the  superior  court,  it  will  be  seen,  fully  supports  its  conclusion  in  favor 
of  the  validity  of  this  transfer  to  Mrs.  Trott  and  it  only  remains  to 
inquire  whether  the  evidence  in  the  record  sustains  the  finding. 

Moore  at  the  time  of  his  death  was  over  seventy-one  years  of  age. 


318  DERIVATIVE  TITLES  (Part  2 

His  first  wife  had  died  childless  and  the  plaintiff  to  whom  he  had  been 
married  about  two  years,  was  without  issue.  His  relation  to  the  de- 
fendant was  that  of  an  old  and  intimate  friend  of  herself  and  her  par- 
ents. Annie  Gray  was  a  member  of  his  own  household,  and  the  other 
persons  named  as  grantees  of  different  portions  of  his  lands  in  the 
deeds  placed  with  Tietzen  were  intimate  and  valued  friends.  Of  his 
long  cherished  design  to  make  each  of  them  a  sharer  in  the  estate  he 
might  leave  at  his  death  there  can  be  no  doubt,  and  it  is  equally  clear 
from  the  evidence  that  he  died  in  the  belief  that  his  purposes  in  this 
regard  were  fully  effected  by  the  deeds  he  had  executed  and  the  in- 
structions concerning  them  contained  in  his  letter  to  Tietzen.  'jBut^TT" 
is  not  enough  that  a  man  shall  desire  and  intend  that  a  stranp^er  to  his 
blood  shall  have  and  enjoy  his  real  property  after  his  death,  for  unless 
he  complies  with  the  legal  requisites  of  a  validtransfer  his  wishes  and 
intentions  are  unavailing  and  bis  purpose  is  defeated.  If,  like  Patrick 
Moore,  he  is  unwilling  to  make  a  testamenta_ry  disEO,^on  which,  if 
unrevoked,  will  pass  the  estate  at  his  deathT  he  must  deliver  his  deed 
absolutely  and  beyond  his  power  to  recall  in  any  contingencv.  to  a 
custodian  whose  duty  it  will  be  to  keep  it  as  long  as  the  grantor  lives, 
and  then  to  deliver  it  to  the  grantee.  Were  these  deeds  so  delivered? 
/If  Patrick  Moore  on  his  return  from  Los  Angeles  had  demanded  their 
/return  could  Tietzen  have  been  justified  in  refusing  to  return  them? 
I  If  he  could  not  have  refused,  it  matters  not  that  no  such  demand  was 
Imade.  The  test  of  an  effective  delivery  in  su''h  r^=p°  ■=  ^Iip  Qhcnliitf> 
'relinquishment  of  the  right  of  recall  by  the  grantor  in  hit;  instrnrtinns 
to  the  person  charged  with  the  duty  of  making  the  delivery.  The 
transfer,  or  attempted  transfer,  of  the  estate  being  entirely  gratuitous, 
the  person  named  as  grantee  has  no  right  beyond  that  which  is  volun- 
tarily conferred  and  the  extent  of  that  right  is  to  be  determined  in 
every  case  where  specific  instructions  are  given  by  what  passes  between 
the  grantor  and  his  selected  agent.  The  agent  is  of  course  bound  to 
do  what  his  instructions  require  him  to  do — no  more,  no  less,  and  when, 
as  in  this  case,  his  only  instructions  are  in  writing,  the  effect  of  the 
transaction  depends  upon  the  true  construction  of  the  writing. ""  "It  Is  in  1 
other  words  a  pure  question  of  law  whether  there  was  an  absolute  de-  I 

H^rp|-Y  nr  rtqt^  \ 

What,  then,  is  the  proper  construction  of  Moore's  letter?  It  seems 
very  plain  that  Tietzen  is  authorized  to  deliver  the  deeds  only  "in  case 
of  my  not  returning  from  the  California  Hospital  where  I  am  going 
for  an  operation,"  and  the  implication  that  if  he  does^  retjjjn  the  deeds 
are  to  be  at  his  disposal  is  clear.  But  counsel  ior  respondent  contends 
that  a  different  intention  is  revealed  by  subsequent  clauses  of  the  let- 
ter. He  relies  greatly  upon  the  direction  to  lock  the  deeds  in  Tietzen's 
safe  "and  in  case  I  should  die  to  immediately  hand  them  to  the  parties," 
etc.  We  think  that  this,  so  far  from  being  inconsistent  with  our  con- 
struction of  the  first  part  of  the  letter,  is  only  corroborative  of  itt  I.fl 
Moore's  intention  had  been  to  part  with  the  deed  absolutely  he  would 


Ch.  2)  EXECUTION   OF  DEEDS  319  ^C 

/not  have  directed  their  delivery  "in  case  I  should  die,"  for  he  was  sure  Y^^*''^  •  ^/>^' 
\ Jio  die  at  some  time.  He  would  more  naturally  have  said  when  I  die.  Al^^^^^^  \ 
It  is  apparent  that  he  was  not  without  some  hope  of  obtaining  relief 
more  or  less  permanent  from  the  contemplated  operation,  and  if  he  had 
returned  from  Los  Angeles  believing  himself  restored  to  health  and 
had  demanded  a  return  of  the  deeds  from  Tietzen  we  can  conceive 
of  no  ground  upon  which  the  demand  could  have  been  resisted.  The 
concluding  part  of  the  letter  to  Tietzen,  which  counsel  agree  must  be 
read  without  any  period  after  the  words  "until  you  deliver  them,"  nei- 
ther aids  nor  weakens  our  construction  of  the  first  part.  The  direction 
to  "keep  to  yourself  the  names  of  the  parties  named  in  those  deeds 
until  you  deliver  them  after  I  pass  in  my  checks,"  etc.,  while  they  cer- 
tainly do  consist  with  the  idea  of  that  death  which  is  certain  to  come 
to  every  man,  were  entirely  appropriate  as  referring  exclusively  to 
death  as  the  result  of  the  operation  about  to  be  performed. 

Aside  from  the  letter  to  Tietzen  which,  as  above  stated,  contained 
the  only  instructions  ever  given  him  as  to  the  disposition  of  the  deeds, 
it  was  shown  by  the  testimony  of  numerous  witnesses  that  Moore 
wished  the  persons  named  as  grantees  in  his  deeds  to  have  the  property 
therein  described,  and  that  his  relations  to  those  parties,  and  his  con- 
dition and  circumstances  made  them  the  reasonable  and  meritorious 
objects  of  his  bounty.  There  is,  moreover,  no  reason  to^doubt  that" 
he  died  believing  that  his  deeds  in  the  hands  of  Tietzen  would  be  suffi- 
cient to  accomplish  his  purpose,  but  his  purpose  is  defeated  by  the  fact 
that  the  delivery  was  not  absolute.  A  technical  but  inflexible  rule  of 
law  governing  the  transfer  of  real  property  prevents  his  intention  from 
being  carried  niit.^^      *      *      * 

Counsel  for  respondent  urges  with  apparent  seriousness  the  prop- 
osition that  the  deeds  to  Mrs.  Trott  having  been  found  in  her  pos- 
session there  is  a  presumption  of  delivery  to  her  at  their  date,  which 
is  not  rebutted  by  the  evidence  in  the  case.  We  think  this  presump- 
tion is  not  only  overthrown  by  the  evidence,  but  that  the  specific  find- 
ings of  the  court  show  that  the  only  delivery  was  that  made  by  Tietzen 
after  Moore's,  death. 

The  order  of  the  superior  coyt  denying  a  new  trial  is  reversed. ^^  _  , 

17  A  portion  of  the  opinion,  in  which  a  number  of  eases  are  reviewed,  is  omit- 
ted. // 

18  See  s.  c,  162  Cal.  268,  122  Pac.  462  (1912).  '  ^  <   d,^^ 
The  owner  of  land,  ill  with  consumption  and  believing  herself  on  her  death-  ^^ ' 

bed,  prepared  a  deed  of  said  land  and  gave  same  to  X.,  with  instructions  that,  ^^ 

"if  I  recover,  I  want  them  back  again ;  and  if  I  do  not,  you  deliver  to"  the 
grantees.  The  grantor  died  six  weeks  later,  and  X.  then  turned  the  deed  over 
to  the  grantees.  Was  there  an  effective  delivery?  Williams  v.  Daubner,  103 
Wis.  521,  79  N.  W.  74S,  74  Am.  St.  Rep.  902  (1899) ;  Seeley  v,  Curts,  ISO  Ala. 
445,  61  South.  807,  Ann.  Cas.  1915C,  .381  (1913). 

The  owner  of  land  made  a  deed  thereof  and  deposited  same  nith  a  trust  com- 
pany, with  written  instructions  "to  hold  it  until  a  specified  date,  at  which  time 
to  return  it  to  the  grantor  if  she  is  then  living,  and  in  the  event  of  her  death 
in  the  meantime  to  deliver  it  to  the  grantees."     The  grautdr  died  prior  to  the 


;320  DERIVATIVE  TITLES  (Part  2 

OWINGS  V.  FIRST  NATIONAL  BANK. 

(Supreme  Court  of  Nebraska,  1914.     97  Neb.  257,  149  N.  W.  777.) 

ReBsE,  C.  J.  This  is  an  action  brought  by  plaintiff,  Ijenry  Ovvings, 
against  the  First  National  Bank  of  Johnson,  Nebraska,  to  recoveii-the 
sum  of  $5,129.67,  the  proceeds  of  the  sale  of  a  tract  of  land,  described 
in  the  pleadings,  but  the  description  of  which  need  not  be  "stated  here. 
The  land  was  formerly  owned  by  Lizzie  E.  Schmidt,  who  was  later 
married  to  Henry  Owings.  They  went  to  the  state  of  Colorado,  and 
after  their  marriage  there  located  in  the  city  of  Sterling,  in  that  state. 
Mrs.  Owings'  liealth_failed,  and  it  became  apparent  that  she  was  in 
a  precarious  condition.  On  the  28th  day  of  June.  1911,  Mrs.  Owings 
executed  a  warranty  deed  to  her  husband,  conveying  the  land  in  ques- 
tion to  him,  and  placed  it  in  a  trunk  in  the  house,  and  kept  it  until  the 
2d  day  of  December,  of  the  same  vear.  At  that  time  it  was  apparent 
that  she  could  not  recover,  and  that  the  date  of  her  dissolution  was 
not  far  distant,  her  malady  being  consumption.  She  was  confined  to 
her  bed,  and  called  for  the  deed  to  be  brought  to  her.  She  then  ob- 
tained pencil  and  paper  and  wrote  the  following  instructions:  "Ster- 
ling, Colorado,  Dec.  2,  19U.  In  case  of  my  death,  give  this  deed^to 
my  husband.  Henry  Owings,  to  be  recorded  so  my  property  is  his. 
I  am  in  poor  health  and  no  hopes  of  -ever  getting  well.  He  is  the  only 
provider  I  have_SQt.  Mrs.  Lizzie  Owings,  Sterling,  Colo."  She 
handed  the  deed  and  the  above  described  memorandum  to  her  hus- 
band, requesting  him  to  place  them  in  a  local  bank  at  Sterling,  which 
he_did^  Mrs.  Owingrdied  on  the  7th  day  of  January.  19jj^  The  sec- 
ond  day  after  her  death,  plaintiff  called  at  the  bank  and  received  the 
deed  and  memorandum  of  instructions,  above  copied,  as  well  as  some 
money  on  deposit,  and  made  preparations  for  returning  to  Johnson, 
Nebraska,  with  tb^  rpm;iin<;  nf  his  deceased  wife.  Prior  to  her  de- 
cease, she,  with  her  husband,  had  negotiated  tlie  sale  of  the  land  to 
one  J.  George  Hahn  for  the  sum  of  $5,640,  and  on  the  11th  day_pf 
December,  1911,  with  plaintiff,  executed  a  warranty  deed  to  the  pur- 
chaser, which  was  deposited  in  the  First  National  Bank  of  Johnson, 
■^*^  A  in  this  state.  Prior  to  this  time,  and  on  the  2d  day  of  December,  1911, 
i^i^.^y'^^  a  written  contract  of  sale  was  made  with  Hahn  for  the  sale  of  the 
<s^j^  Oi.  land  at  the  price  of  $5.640.  $400  of  which  was  paid  in  cash,  the  re- 
K    ^^^  mainder  to  be  paid  on  the  1st  day  of  March.  1912.  or  $2.500  to  be 

V  >  then  paid,  and  the  remainder  on  time  at  the  option  of  the  purchaser. 

.    Lil   date  specified,  and  tbe  deed  was  given  to  the  grantees.    Was  there  an  effective 
t JjK'   '       delivery?     Long  v.  Ryan,  166  Cal.  442,  137  Pac.  29  (1913). 

•■^  A  husband  prepared  a  deed  of  bis  lauds  to  his  wife,  and  at  the  same  time  the 

wife  prepared  a  deed  of  her  lands  to  him.  Both  deeds  were  deposited  with  a 
third  party,  with  instructions  not  to  return  either  deed  except  upon  the  written 
order  of  both,  and  in  case  of  death  of  either  to  deliver  the  deed  of  the  deceased 
to  the  survivor.  The  wife  died  first,  and  her  deed  was  given  to  the  husband. 
Was  it  an  effective  delivery?  Dunlap  v.  Marnell,  95  Neb.  535,  145  N.  W.  1017 
-(1914). 


^'^^ 


\o^ 


Ch.  2)  EXECUTION   OF  DEEDS  321 

Instead  of  accepting  the  time  option,  Halin  paid  into  the  bank  the 
whole  amount,  and  accepted  the  deed,  with  another  one  executed  by 


P^amiit 

Mrs.  Owings  left  no  child,  nor  father,  nor  mother,  surviving  her, 
but  she  had  two  brothers,  Henry  Schmidt  and  Charles  J.  Schmidt, 
who  demanded  one-half  of  the  money  in  the  bank  as  the  heirs  of 
Mrs.  Owings.  The  bank  refused  to  pay  tlie  money  to  either  claimant, 
when  this  action  was  brought  against  it  by  plaintiff  for  the  whole 
amount.  The  bank  filed  the  statutory  affidavit  to  the  effect  that  it  held 
no  claim  on  the  money,  but  that  it  was  demanded  by  the  claimants, 
and  asked  to  be  protected.  The  court  ordered  the  brothers  to  inter- 
vene  and__set_Ji£their  claims  by  a  day  fixed  by  the  courts  whichthev 
dig.  contending~tKarthe  deed  frorti  Mrs.  Owings  to  her  husband  did  ,-^  a.  /^ 
riori:onvey  any  title  to  him  for  Avant  of  delivery,^ that  the  sale  of  the  ' 
land  to  Hahn  was  of  her  property,  and  bv  reason  of  their  relationship 
to  her  they  were  entitled  to  one-half  of  the  fund  under  the  provisions 
oj  the  statutes  of  descent  in  this  state.  It  appears  that  Henry  Schmidt 
held  a  note  against  his  sister,  Mrs.  Owings,  for  the  sum  of  $1,019.25, 
growing  out  of  the  settlement  and  adjustment  of  an  estate  to  which  - 
the  land  formerly  belonged,  and  which  note  Mrs.  Owings  directed 
should  be  paid  at  the  time  she  handed  the  deed  to  plaintiff  at  Sterling. 
There  is  no  question  as  to  this  sum  of  money,  plaintiff  having  agreed 
at  the  trial  that  Henry  Schmidt  should  receive  it  out  of  the  fund. 
The  cause  was  tried  to  the  court  wjthout  the  intervention  of  a  jury. 
when  a  finding'"an3  judgment  was  entered,  giving  tlie  $1.019.25  to 
Henry"  Schmidt,  and  the  re.sidue  tojbe^paid  by  the  bank  to  plajntiff. 
Defendants.  xolp^'vp^^erSf  appeal. 

"The  real,  and  indeed  the  only,  question  presented  is :  Was  the  deed/ 
from  Mrs.  Owings  to  plaintiff  so  delivered  to  hirn  as  to  pass  the  tit]e  ? 
The  negotiations  for  the  sale  to  Hahn  had  so  far  progressed  that  the 
contract  of  sale  to  the  purchaser  was  signed  on  the  day  the  deed  was 
handed  to  plaintiff  for  deposit  in  the  Sterling  bank,  but  the  contract 
an4  conveyance  to  Hahn  were  both  signed  by  Mrs.  and  Mr.  Owings. 
Considerable  testimony  was  taken  at  the  trial  showing  what  occurred 
at  the  time  the  deed  was  sent  to  the  Sterling  bank,  as  well  as  declara- 
tions made  to  others  by  Mrs.  Owings  after  the  execution  of  the  deed 
and  before  the  2d  day  of  December,  the  day  it  was  sent  to  the  bank. 
The  written  memorandum  was  made  by  Mrs.  Owings  while  on  her 
sickbed,  and  she  never  was  "down  town"  after  that  date  and  prior  to 
her  death.  She  never  made  any  effort  to  countermand  those  instruc- 
tions, but,  so  far  as  is  shown  by  the  record,  shfc  was  at  all  times  there- 
after entirely  pleased  with  what  she  had  done.  I^ad  she  been  able  to 
go  to  the  bank  and  deposit  the  deed  with  oral  instructions  as  written. 
the  case  would  fall  within  the  rule  of  Roepke  v.  Nntymann,  QS  Nph 
589,  146  N.  W.  939,  and  we  are  upp^l^  ^''^  gf'p  ^^y^  nnflpr  hfr  yqr\\\ew 
instructions  to  the  bank,  they  would  not  be  of  equal  force.  That  case 
Aig.Prop. — 21 


322 


DERIVATIVE   TITLES 


(Part  2 


and  Brown  v.  Westerfield,  47  Neb.  399,  66  N.  W.  439,  53  Am.  St. 
Rep.  532,  are  decisive  of  this  one,  and  it  is  not  necessary  that  the 
law  of  those  cases  be  further  examined. 

We  are  satisfied  therewith,  and  that  the  judgment  of  the  district 
court  is  right  and  it  is  affirmed.^" 


STONE  V.  DUVALL. 

(Supreme  Court  of  Illinois,  1S75.     77  111.  475.) 

Writ  of  Error  to  the  Circuit  Court  of  Monroe  county;  tlie  Hon. 
Amos  Watts,  Judge,  presiding. 

This  was  a  bilUn_chancei:^,  filed  by  Washington  Duvall  and  Mary 
Duvall,  his  wife,  against  George  Stone,  Julia  Stone,  Pearly  Stone  and 
Bissell  Davis,  heirs  at  ja\v  c}i  j^riry  ■^tcuie,_d£geased.  and^W^^i^ffl 
Stone,  h"usbanrl  cff  Mary  ,Stnne,  tn  set  aside  a  (jeed  made-Jiy  th£.XQm- 
plainants  to.  said  Marv  Stone.  The  material  facts  of  the  case  are  set 
:l^orth  in  the  opinion  of  the  court.  {^^^j*^^^ P  1^a^^,JIU/'^  ^irtv(-^ 

Walker,  J.  The  evidence  shows^tnat  defencmnts  in  error  had 
each  been  previouslv  marxjed,  Washington  having  a  daughter  by  that 
former  marriage,  who  was  married  to  William  Stone ;  Mary  had  a 
son  by  her  previous  marriage,  named  Allen  Agnew.  They  each  owned 
a  small  amount  of  real  estate  when  married,  and  discord  afterwards 
having  arisen  between  them,  it  was  agreed  that  they  should  respectively 
relinquish  or  convev  their  claim  tqjsach  other's  property,  so  that  the 
survivor  would  have  no  interest  in  the  real  estate  of  the  other — to 
cut  ofif  the  claim  of  dower  by  the  wife  in  the  property  of  the  husband, 
and  the  right  of  curtesy  of  the  husband  in  the  property  of  the  wife, 
and  to  prevent  their'  step  children  from  claiming  any  interest  in  the 
property  of  their  step  parents. 

In  consummating  this  arrangement,  defendants  in  error  went  to  a 
justice  of  the  peace,  who,  under  their  directions,  preparedjle^s  which 
they  executed  and  acknowledged.  By  one  of  these  deeds  the  land 
owned  by  the  husband  was  conveyed  in  fee  to  his  daughter,  Mrs.  Mary 
Stone.  By  the  other,  the  wife's  real  estate  was  conveyed  to  Allen 
Agnew.  The  justice  was  directed  to  have  the  deeds  recorded,  and 
to  hold  them  until  the  death  of  the  parties,  and  then  deliver  them  to 
the  respective  grantees!  subsequently  Mrs.  Stone  died,  leaving"Trer 
husband,  and  tlie  other  defendants,  her  minor  children,  surviving  her. 

19  In  Loomis  v.  Looiuis,  178  Mich.  221,  144  N.  W.  .'i52  (101.3).  the  grantor,  after 
signing  the  deed,  instructed  the  scrivener  to  retain  i)ossessi(ni  thereof,  ".and 
that  if  anj'thing  occurred  to  her,  happened  to  her,  to  deliver  this  deed  to"  the 
grantee.  After  the  grantor's  death  the  scrivener  turned  the  deed  over  to  the 
grantee.  The  scrivener  testified  thnt.  if  the  grnntnr  had  called  for  the  deed 
during  hg"-  'if'^tMll^i  ^^  '"'"'llrl  [I'-'^i'^^i'ly  linve  snrrendered  it  to  lier.  The  court 
held  there  had  heen  an  effective  delivery,  an  iimuediate  estate  having  vested  in 
the  grantee,  suhject  to  a  life  estate  in  the  g;rautor.     See  O'Brien  v.  O'Brien,  19 

w.  D.  ad,  i2b  i^.'w.  307Ti^oj: — 


l^^^ 


Ch.  2)  EXECUTION   OF  DEEDS  323 

The  deeds  were  recorded,  as  required,  by  the  justice  of  the  peace,  and 

held  untilliTter  Mrs.  Stone's  death,  when  Duvall  called  and  took  the 

deed  executed  to  her  from  the  justice.    It  appears  that  Stone,  with  his  9Sx*^ 

wife,  was  in  possession  of  the  property  conveyed  to  his  wife  when   "^       '    ^(X^ 

the  deeds  were  made,  and  he  so  continued  in  possession  until  after  the       ^C^^'\^^^ 

suit  was  brought"  ~  ~~       ~  ~ 

Complainants  claim  that  the  deed  to  Mrs.  Stone  was  not  made  in 
pursuance  of  their  intentions,  and  contrary  to  their  directions ;  that 
the  deed  was  never  delivered  to  the  grantee,  or  to  any  one  for  her,  \(J> 
^d  \\\ej^'^VeA  tn  have  it.^e,t  a^side  and  cancelled,  and  tlie  prpsgrty 
restored  to  Duvall.  as  it  was  before  the  deed  was  made.  On  a  hear- 
ing, the  court  below  granted  tlie  relief  sought,  and  defendants  bring 
the  record  to  this  court  on  error,  and  ask  a  reversal. 

The  evidence  of  the  justice  of  the  peace  seems  to  be  rather  incjefinite 
as  to  what  the  expressed  purpose  of  the  parties  was  when  he  drew 
the  deeds.  He  is,  however,  positive  that  he  was  directed  to  prepare 
deeds  to  convey  the  land.  He  proposed  to  fix  the  matter  by  agree- 
ment, will  or  otherwise,  but  Duvall  declined,  saying  his  wife  desired 
deeds.  He,  when  asked  the  direct  question  whether  the  purpose  was 
not  to  convey  Duvall's  interest  in  his  wife's  property  to  her  son,  and 
anyinterest  she  held  m  Duvall  s  property  to  Mrs.  Stone,  and  whether 
Duvall  did  not  so  inform  him,  says  he  believes  that  was  the  meaning, 
but  that  he  could  not  swear  to  the  exact  words.  He  also  says  that 
he  was  afterwards  so  informed  by  Mrs.  Duvall.  He  nowhere  says 
that  it  was  understood  or  intimated  that  the  parties  intended  or  said 
they  desired  to  retain  any  interest  in  the  property.  •  By  a  conveyance 
in  fee,  they  undeniably  would  accomplish  the  purpose  of  preventing 
such  claims  as  effectually  as  by  any  other  mode ;  and  it  is  strange,  if 
such  was  the  intention,  that  they  did  not  say  that  was  their  only  pur- 
pose. 

Duvall  told  Stone  that  he  intended  to  convey  the  property  to  his 
wife,  as  Stone  states  in  his  sworn  answer.  The  deed  having  been 
subsequently  made  in  accordance  with  this  declaration,  and  in  pursu- 
ance to  the  advice  received  from  the  attorney,  a  different  purpose  from 
that  expressed  in  the  deed  should  be  clearly  proved,  before  a  court 
of  chancery  would  interfere  to  set  it  aside.  The  deed  itself,  in  proper 
form  and  duly  executed,  is  strong  evidence  of  the  grantor's  intention. 
ancT  to  overcome  it.  the  evidence  should  be  clear  and  convincing. 

Here  we  find  a  man  largely  advanced  in  life,  the  father  of  a  woman 
having  a  family  of  children,  and  of  limited  means,  and,  as  it  seems, 
fearful  that  his  wife  would,  at  his  death,  hold  dower  in  his  property, 
determined  to  secure  the  property  to  his  daughter,  and  it  is  not  out  of 
t he  usual  cou rse  of  human  action  for  him  to  make  a  conveyance  to 
her.  He  inquired  if  he__could ;  he  said  he  would,  and  finally  did  so 
convey  it.  Duvall,  himself,  testified,  and  he  does  not  state  the  pur- 
pose of  the  conveyance,  nor  the  instructions  he  gave  to  the  justice  of 
the  peace.     He  does  not  say  that  the  deed  did  not  carry  out  his  pur- 


324  DERIVATIVE  TITLES  (Part  2 

pose  virhen  it  was  made.  He  is  silent  as  to  the  execution  of  the  deed, 
or  what  he  said  to  the  justice.  He  does  not  say  there  was  a  mistake. 
01^ that  the  justice  did  not  do  precisely  what  he  desired.  _  . 

It  is,  however,  said  there  was  no  consideration  paid  for  the  prop-  ' 
erty.  He  acknowledges,  in  his  deed,  that  tliere  was,  and  he,  and  all 
others,  fail  to  disprove  the  acknowledgment  of  the  fact  in  the  deed. 
The  justice  says  he  knew  nothing  of  any  consideration  bein^  paid, 
but  that  does  not  negative  the  statement  in  the  deed  that  it  was.  Even 
if  it  was  necessary  to  prove  a  pecuniary  consideration  to  sustain  the 
deed,  still,  tlie  deed,  uncontradicted,  proves  that  it  was  paid.  We 
will  not  stop  to  inquire  whether  natural  love  and  affection,  although 
not  expressed  in  the  deed,  would  not-sustain  it,  or  whether,  on  his 
own  theory  of  the  case,  the  getting  of  the  property  free  from  his  wife's 
dower  would  not  be  sufficient. 

It  is  manifest  that  complainants  intended  to  convey  some  interest 
in,  and  title  to  these  premises  to  Mrs.  Stone,  but  what  interest  is  not 
sfiown  by~the  evidence.  Whether  it  was  to  be  a  fee  subject  to  a  life 
estate  in  the  grantor,  or  some  other  estate,  does  not  appear.  Nor  do 
counsel  suggest  what  estate  it  was.  To  cancel  the  deed  would  be  to 
permit  Duvall  to  change  his  mind,  and  to  defeat  his  act  deliberately 
dQne_atteF consultation  and  advice  taken,  and  done  m  accordance  with 
his  previously  expressed  purpose  to  convey  to  Mrs.  Stone.  It  would 
be  clearly  wrong  to  abrogate  the  deed,  unless  it  clearly  appeared  that 
an  estate  less  than  a  fee,  and  such  an  estate  as  terminated  with  her 
life,  or  previous  thereto,  was  intended  to  be  conveyed,  but  was  not  by 
reason  of  a  mistake. 

It  is  urged  that  the  deed  was  never  delivered.  It  was  not,  to  Mrs. 
Stone,  as  she  was  probably  not  aware  of  its  existence  for  a  considera- 
ble time  afterwards,  if  it  ever  came  to  her  knowledge.  Was  the  de- 
1  ivery  to  the  justice  of  the  peace,  with  directions  to  record  and  hojd 
it  until  the  death  of  Duvall,  a  delivery?  It  was  manifestly  not  an  ab- 
solute  dehvery.  The  fact  that  he  was  directed  to  hold  the  deed,  and 
not  deliver  it  till  the  death  of  Duvall,  renders  it  absolutely  certain 
that  the  grantor  did  not  intend  that  the  deed  should  take  effect  until 
that  time.  This  removes  all  doubt  on  that  question.  The  deed  did 
not,  therefore,  opera'te  to  give  Mrs.  Stone  any  immediate  rights  or 
interest  in  the  premises.  If  she  acquired  any  right,  it  was  that  the 
title  should  only  vest  in  her  at  her  father's  death. 

Was  this,  then,  a  delivery  as  an  escrow?    Kent,  Ch.  J.,  in  the  case 
of  Jackson  v.  Catlin,  2  Johns.  (N.  Y.)  248,  3  Am.  Dec.  415,  says:   'jA 
^ deed  is  delivered  as  an  escrow  when  the  delivery  is  conditional,  that 
•  fMjt/^J^      is^  when  it  is  delivered  to  a  third  person  to  keep  until  something  be 
^ -/^ —     done  fay  the  grantee;   and  it  is  of  no  force  untij  the  condition  be  ful- 
filled.''    Sheppard,  in  his  Touchstone,  p.   58,  gives  substantially  the 
sTriie  definition,  except  he  does  not  limit  the  performance  of  the  act 
to  the  grantee,  which  seems  to  us  to  be  the  more  accurate  rule.     Now 
this  deed  was  to  be  delivered  on  the  death  of  Duvall.    That  was  the  ex- 


\ni*'^ 


Ch.  2)  EXECUTION   OF   DEEDS  '     325 

press  condition  upon  which  it  was  placed  in  the  hands  of  the  justice, 
and,  according  to  the  authority  of  the  case  of  Jackson  v.  Catlin,  supra, 
it  was  delivered  as  an  escrow,  and  rniild  not  take  fqll  effect  until  the 
thing  happened  that  was  conditional  to  its  delivery;  and  Duvall  not 
having  died,  the  deed  has  not  yet  vested  the  title  in  full,  and  can  not 
until  that  event  shall  occur. 

Sheppard  lays  it  down  as  the  law,  that  "The  delivery  is  good^  Jor  it 
is  said,  in  this  case,  that  if  either  of  tlie  parties  to  the  deed  die  before, 
tiie"  conditions  be  performed  and  the  conditions  be  after  performed, 
that  the  deed  is  good;  for  there  was  traditio  inchoata  in  the  lifetime 
of  the  parties ;  and  postea  consummata  existens,  by  the  performance 
of  tjie  conditions,  it  taketh  its  effect  by  the  first  delivery,  without  any  ^6iMK-#  -^^ 
new  or  second  delivery ;  and  the  second  delivery  is  but  the  execution  «  -^  diiJt*^^^ 
and  consummation  of  tlie  first  delivery."     But  in  such  a  case,  the  de-  ^  r 

livery  only  relates  back  to  the  first  delivery  so  as  to  carry  out  the  in- tk^Cl^  HSl    -^ 
tention  of  the  grantor,  and  to  vest  the  title.     It  would  not  give  the  /^XuJL<ii-c»r^ 

grantee  a  right  to  intervening  rents  and  profits.     So  in  this  case,  the  \J — -^ "     ' 

deed  is  an  escrow,  that  will  not  take  effect  until  DuvalFs  death,  when 

it  may  be  delivered  to  the  heirs  of  the  grantee,  and  it  will  be  held  to     ^ 

have  taken  ettect  so  as  to  nave  vested  such  a  title  in  the  mother  as  to    lA^A.  -^^^^VCA 

pass  the  fee  to  them.    Until  that  time,  Duvall  will  be  entitled  to  the  use 

of  the  property  as  though  he  had  a  life  estate,  and  the  children  of 

Mrs.  Stone  the  remainder. 

It,  then,  follows  that  the  court  below  erred  in  rendering  the  decree, 
and  it  is  reversed.    Decree  reversed.^"     ^  //a^ZZ^  f'  CZ^n^-^-i 

STONEHILL  v.  HASTINGS. 

(Court  of  Appeals  of  New  York,  1911.    202  N.  Y.  115,  94  N.  E.  1068.) 

HiscocK,  J.  This  action  was  brought  by  the  appellants  as  residu- 
ary legatees  and  representing  a  deceased  residuary  legatee  of  one  Mar- 
gretta  Todd  to  set  aside  a  deed  and  what  has  been  denominated  a  life 


/p. 

T5y  a 


"It  is  the  well-established  rule,  in  this  state  that  the  deliven''  of  a  deed 


y  a  grantor  to  a  third  narty,  to  be  by  him  delivered  to  the  grantee  after  tlie 
grantor's  death,  is  valid.  It  conveys  the  fee,  and  operates  as  a  conveyance  in 
pra?sent"i,"flibugh  the  enjoyment  is  postponed  until  the  grantor  s  aeath.'^  Meech 
v.'"\\^'ider,''i:i(>  Mich,  iil),  31,  89  ^'.  W.  55(i,  bb?  (iyOL!).  See  Loomis  V.  Loomis, 
supra,  note  19. 

"A  grantor's  deposit;  of  his  deed  with  a  third  party,  to  be  held  by  such  third 
party  until  the  grantor's  death  and  then  delivered  to  the  grantee  therein  named, 
the  grantor  reserving  no  dominion  or  control  over  the  deed  during  his  lifetime, 
constitutes_,a  valid  delivery  and  vests  an  immediate  estate  in  the  grantee,  sub- 
jecrTp_a  life  estate  in  the  g^rantor  [citing  many  cases]."  Jviaxweli  v.  Harper, 
sFWaslT.  "851,  ;iod,  yy  Pac.  7o6,  Vbs  (1909).  To  same  general  effect  are  Rowley 
V.  Bowyer,  75  N.  J.  Eq.  80,  84,  71  Atl.  398,  400  (1908).  "All  the  cases  cited 
hold  that  title  passes  either  at  or  as  of  the  date  of  the  first  delivery."  Nolan 
v.  Otney,  75  Kan.  311,  89  Pac.  690,  9  L.  R.  A.  (N.  S.)  317  (1907),  where  the  gran- 
tee was  to  support  the  grantor  during  his  life. 


326  '  DERIVATIVE  TITLES  (Part  2 

lease  of  certain  real  estate  situate  in  the  city  of  New  York  known  as  the 
Von  Hoffman  Apartment  House.  The  deed  ran  to  a  daughter,  Rosalie 
Tousey,  subject  to  the  life  lease.  It  was  delivered  by  the  grantor  to_a 
third  person  to  be  by  him  after  her  death  delivered  to  the  grantee^ 
which  was  done  and  this  appeal  is  concerned  with  the  judgment  dis- 
missing the  complaint  in  so  far  as  it  attacks  said  deed.  Such  attack 
does  not  present  here  any  question  of  fraud  or  undue  influence,  but 
~>  involves  the  question  whether  the  deed  was  valid  and  effective  under 
,       the  circumstances  of  its  delivery. 

The  important  findings  on  which  the  judgment  dismissing  the  com- 
plaint is  based  and  certain  significant  refusals  to  find  are,  in  substance, 
as  follows : 

Some  time  before  her  death,  Margretta  Todd,  being  the  owner  of 
the  premises  in  question,  executed  a  deed  of  the  same  to  her  daughter 
Rosalie  in  consideration  of  natural  love  and  affection,  and  delivered 
the  same  to  one  Lockwood.  "with  instructions  to  hold  the  same  (ku-ing 
the  lifetime  of  the  grantor  *  *  *  ^Lud  upon  or  after  the  death  of 
the  said  Margretta  Todd,  to  deliver  the  said  deed  of  the  said  premises 
to  her  said  daug^hter."  In  accordance  with  these  mstructions,  com- 
munioated  to  him  at  the  time  of  the  execution  of  said  deed,  Lockwood 
"did  hold  the  said  deed  during  the  lifetime  of  said  Margretta  Todd  and 
after  her  death  delivered  the  same  to  the  said  Rosalie  Tousey  who 
duly  accepted  the  said  deed."  The  court  refused  to  find  that  said  deed 
was  deposited  with  Lockwood  by  the  grantor  as  her  agent,  or  that  she 
at  all  times  retained  control  of  the  aforesaid  deed  (and  lease)  and  ex- 
ercised over  the  said  instruments  the  power  to  recall  them.  During 
the  lifetime  of  the  grantor,  Lockwood  informed  the  grantee  tbat  her 
mother  "had  executed  and  delivered  to  him  a  deed  conveying  the  said 
premises  to  the  said  Rosalie  Tousey  to  be  delivered  to  her  after  the 
death  of  her  said  mother."  October  31,  1905,  three  days  after  the 
death  of  the  grantor,  Lockwood  caused  to  be  recorded  in  the  proper 
office  tTie  deed  in  question,  and  notified  one  Hasting^s,  as  attorney  for 
the  grantee,  of  such  recording.  The  grantee  at  the  time  was  traveling 
abroad,  and  after  she  returned  to  New  York  early  in  December  she 
assumed  the  direction  and  management  of  said  premises,  expending 
various  sums  in  re-decoration,  repairs,  etc.,  and  she  made,  or  caused 
to  be  made,  a  demand  upon  the  Lincoln  Trust  Company,  which  had 
taken  possession  ot  the  property  under  circumstances  hereafter  to  be 
referred  to.  that  the  management  and  control  of  the  premises  be,re- 
linniiished  to  her  "as  the  said  property  belonged  to  her  under  a  deed 
executed"  as  hereinbefore  stated,  and  thereafter  possession  was  sur- 
rendered to  her,  which  she  retained  until  her  death,  when  her  title 
passed  to  others  who  are  defendants  here. 

I  fail  to  see  any  break  in  this  chain  of  findings  which  prevents  them 
from  being  sufficient  in  connection  with  other  more  formal  ones  to 
draw  after  them  the  conclusions  of  law  and  judgment  which  have  been 
made  to  the  effect  that  said  deed  vested  in  the  grantee  a  title  which 


Ch.2) 


EXECUTION   OF   DEEDS 


327 


was  valid  and  effective  as  against  the  attempt  of  the  appellants  to  sev. 
it  aside.  ~        ' 

It  is  urged,  however,  as  against  the  force  of  the  findings  above  sum- 
marized that  other  findings  were  made  which  are  so  inconsistent  there- 
with as  to  lead  to  a  different  judgment  than  that  which  was  rendered. 
Some  of  these  findings  are  designated  in  the  decision  as  findings  of 
fact  and  some  of  them  which  are  described  as  conclusions  of  law  are 
nevertheless  asserted  by  the  appellants  to  be  findings  of  fact.  They  are 
in  substance  as  follows : 

T hat  at  the  time  of  her  death  and  for  many  years  prior  thereto  Mar- 
gretta  Todd  was  the  oivner  in  fee  simple  of  the  property  in  question ; 
that  she  "retained  the  active  and  undisputed  control,  possession,  man- 
agement and  ownership  of  thf^  g^irl  prpmkpQ  Hnwn  to  tjif  dnt^  o^  ^""^ 
deatl^;"  that  on  divers  occasions  subsequent  to  the  execution  of  the 
said  deed  to  her  daughter  said  Margretta  Todd  "had  shown  much  love 
and  affection  for  her  said  daughter  *  *  *  ^j^^^  had  expressed  an  in- 
tention of  executing  a  deed  of  the  said  premises  to  the  said  Rosalie  Tou- 
se}^"  (stated  as  conclusions  of  law)  that  the  deed  was  a  valid  convey- 
ance "to  take  effect  on  the  death  of  said  Margretta  Todd ;"  that  after 
the  death  of  the  said  grantor  the  said  Lockwood  made  a  valid  delivery 
of  the  deed  of  said  premises  to  Rosalie  Tousey  and  the  said  deed  was 
duly  accepted  by  her  "and  the  fee  simple  of  said  premises  vested  in 
Rosalie  Tousey  from  the  time  of  the  death  of  said  Margretta  Toddon 
the  2Sth  day  of  October,  1905,  nnd_th^  snid  Roprilip  Tnngpy  |ip  ^nd  is 
entitled, I'H  the.  rp^}\^  anr]  profit"  thrrpfrnm  jxom  said  28tli  day  of  Qcto- 
berjJ905." 

'On  tliesfe  so-called  findings  of  fact  the  appellants  build  up  the  argu- 
ment that  in  order  to  be  effective  the  deed  delivered  to  Lockwood  \ 
^ithermust  have  taken  effect  presently  when  delivered  to  him  or  else  I 
takerT  etlect  when  delivered  to  the  grantee  after  the  death  of  tlie  / 
e^rantor  must  have  related  back  to  ^^""^  tii-np  f.f  itc  A(A\yery  to  Lock-  \ 
wood ;  that  on  either  theory  the  grantor  could  not  retain  ownership  of  I 
the  premises  down  to  the  time  of  her  death,  and,  therefore,  the  findings  1 
which  have  been  last  quoted  are  in  conflict  with  both  theories  and  1 
"rnmpel  the  ronr1ii':;inn  that  the  AeeA  wnc  in<^Piq(-]^r|  to  take  effect  not  J 
as  a  present  ronve\'-ance  but  n^i  n  t''^tnmrntnr3'ji.ispositio£i-" 

I'he  hrst^!r\v^r*Tothis  argument  is  that  the  findings  which  appel- 
lants rely  upon  and  which  they  claim  to  be  in  conflict  with  those  first 
quoted  from,  if  they  are  in  any  conflict,  involve  statements  of  law  rath- 
er than  of  fact.    I  suppose  that  the  question  as  of  what  time  tHeTTtleN 
would  pass  from  grantor  to  grantee  and  at  what  date  the  fee  simple  \ 
would  vest  in  the  latter  upon  performance  of  the  various  acts  set  forth  i 
in  the  findings  naturally  must  be  one  of  law.  ~^ 

In  the  second  place,  I  do  not  think  there  is  anything  in  the  findings 
or  conclusions  as  a  whole  which  is  intended  tO'  be  or  really  is  at  vari- 
ance with  the  judgment  which  was  rendered  or  which  destroys  the 
deed  as  a  valid  conveyance.    Take  as  an  illustration  the  findings  that 


328  DERIVATIVE  TITLES  (Part  2 

the  deed  was  to  take  effect  on  the  death  of  the  grantor  and  that  the 
"fee  simple  of  said  premises  vested  in  Rosahe  Tousey  *  *  * 
from  the  time  of  the  death  of  said  Margretta  Todd,"  and  that  at  the 
time  of  her  death  said  grantor  was  the  owner  in  fee  simple  of  the 
property,  and  interpreted  in  the  light  of  their  surroundings  they  are 
substantially  accurate.  The  conclusion  that  tlie  title  vested  in  the  gran- 
tee from  the  time  of  the  death  of  her  grantor  was  part  of  a  conclusion 
of  law  made  for  the  purpose  of  fixing  the  time  from  which  the  grantee 
should  receive  the  rents  and  profits,  and  I  do  not  understand  that  there 
is  any  dispute  tliat  she  was  properly  limited  in  her  right  to  these  to  the 
period  after  her  grantor's  death.  The  other  conclusions  that  the  deed 
was  to  take  effect  upon  tlie  death  of  the  grantor  and  that  the  latter 
died  seized  of  the  premises  are  in  accordance  with  the  fact  of  the  final 
delivery  of  the  deed  and  the  law  as  established  by  well-considered 
cases. 

Hathaway  v.  Payne,  34  N.  Y.  92,  113,  considered  a  deed  like  the 
present  one,  which  was  delivered  by  the  grantor  to  a  third  party  to  be 
delivered  to  the  grantee  after  the  former's  death.  Chief  Judge  Denio 
wrote  for  a  majority  of  the  court  as  follows :  "They  (the  authorities) 
do  *  *  *  prove  that  a  deed  may  be  delivered  to  a  third  person,  as 
this  was,  with  instructions  to  be  finally  delivered  to  the  grantee  after 
the  death  of  the  grantor.  In  such  a  case,  the  weight  of  authority  is, 
that  no  title  passes  until  the  final  delivery,  and  that  then,  and  there- 
after, the  title  IS,  by  relation,  deemed  to  have  vested  as  of  the  time  o f 
the  first  delivery  to  the  third  person.  If  it  were  an  original  question,  I 
should  suppose  that  such  a  transaction  was  of  a  testamentary  character. 
*  *  *  But  the  cases  establish  the  rule  as  I  have  stated,  and  they 
should  not  now  be  disturbed." 

The  same  doctrine  was  laid  down  in  Rosseau  v.  Bleau,  131  N.  Y. 
177,  30  N.  E.  52,  27  Am.  St.  Rep.  578.  It  was  there  held  that  an 
action  might  not  be  maintained  by  the  representatives  of  a  deceased 
person  to  set  aside  as  fraudulent  against  creditors  a  deed  not  delivered 
until  after  the  latter's  death  for  the  reason  that  such  a  deed  did  not 
become  operative  during  life  and  that,  therefore,  tlie  grantor  died  so 
seized  that  the  liens  of  creditors  attached  under  the  statutes  relating  to 
real  estate  of  deceased  persons. 

In  this  connection  appellants'  counsel  especially  relies  on  the  cases  of 
Rochester  Sav.  Bank  v.  Bailey,  34  Misc.  Rep.  247,  69  N.  Y.  Supp.  163, 
affirmed,  70  App.  Div.  622,  75  N.  Y.  S'upp.  1131 ;  Burnham  v.  Burn- 
ham,  58  Misc.  Rep.  385,  111  N.  Y.  Supp.  252,  affirmed,  132  App.  Div. 
937,  116  N.  Y.  Supp.  1132;  Id.,  199  N.  Y.  592,  93  N.  E.  1117. 

In  each  of  these  cases  it  expressly  appeared  that  the  grantor  re- 
tained control  of  the  deed,  a  condition  which  not  only  does  not  affirma- 
tively appear  in  this  case,  but  which  is  negatived  by  an  express  refusal 
to  find  to  that  effect. 

It  is  further  urged  that  as  evidenced  by  certain  findings,  the  daugh- 
ter elected  to  reject  the  deed.    These  findings  are  to  the  effect  that  on 


Ch.  2)  EXECUTION   OF   DEEDS  329 

learning  of  the  death  of  her  mother  she  cabled  to  certain  representatives 
to  look  after  her  interests,  and  that  those  representatives,  although 
knowing  of  the  so-called  lease  and  deed  and  also  of  the  will,  insti- 
tuted proceedings  to  have  the  Lincoln  Trust  Company  appointed  tem- 
porary administrator  and  to  have  it  take  possession  of  all  of  the  estate 
of  the  decedent,  including  the  real  estate  in  question,  which  it  did.  _I 
dcLnot  think  under  the  circumstances  that  this  amounted  to  any  binding 
election  to  reject  the  deed.  The  directions  given  by  the  daughter  were 
necessarily  general  and  incomplete  and  in  my  opinion  did  not  fairly  con- 
fer upon  her  representatives  the  authority  to  reject  the  deed.  Immedir 
at^elyupon  her  return  she  elected  to  accept  the  deed  and  take  title 
tmdfr  iL^ 

Under  the  circumstances  I  think  the  judgment  should  be  affirmed 
with  costs.    Judgment  affirmed.  /  » 

SMILEY  V.  SMILEY. 

(Supreme  Court  of  Indiana,  18S8.     114  Ind.  258,  16  N.  E.  585.) 

Elliott^.  Jacob  Smiley  was  married  four  times.  By  his  first 
wife,  Ca^^Ptne,  he  had  four-frtnklren.  Joseph  J..  Jonathan  H.,  James 
and  Elizabeth.  By  his^econePmfe  he  had  no  children.  In  1870  he 
married  his  third  wi(^-Mary.  On  the  26th  day  of  September,  1873, 
he  i>£came  the  ownfer  of  the  land  in  controversy.  On  that  day  he  and 
hfe^ife  executed  five  deeds^  one  to  his  daughter.  Elizabeth,  one  to  his 
son  Jonathan  H.,  one  to  Joseph  and  Jonathan,  one  to  Toseph.  and  one 
to  the  heirs  of  Tames  Smiley.  At  that  time  James  Smiley  was  living 
and  had  four  children,  Jacob  M.,  Sarah,  William  and  Elizabeth.  These 
deeds  embraced  part,  but  not  all,  of  the  land  owned  by  Jacob  Smiley 
iiL.1873!  On  the  25th  day  of  May,  1875,  he  executedj^  .yq\L  by  which 
he  devised  to.  his  wife,  Mary,  during  her  life  or  widowhood,  part  of  the 
land — that  in  section  11.  Item  5th  of  his  will  reads  as  follows:  "I 
have  heretofore  executed  deeds  to  all  my  real  estate,  not  above  named, 
to  my  children  and  grandchildren  for  the  lands  which  I  wish  them 
each  to  have,  and  r\n\v  pLnre  therrij  the  said  deeds,  in  the  hands  of. my 
executor  hereinafter  named ;  which  deeds  I  wish  my  said  executor 
at  my^  death  to  deliver  to  the  parties  severally  named  therein,  and  to 
whom  said  deeds  are  executed.  In  the  6th  item  of  the  will,  Joseph  J-  I  »  >v»^v^  j( 
Smiley  was  nominated  executor,  T^^^  Q/^ 

A  few  days  after  the  execution  of  the  will,  Jacob  Smiley  placed  the     ^V  *^ 
dee^s  in  tiie  hands  of  Joseph  T.  Sniijey,  and  directed  him  to  retain       " 
them  untiraJte'r  he,    |acob  Smiley,  should  die,  then  to  deliver  them. 
On  the^'54th  da}nyf"September,  1875,  tlie  third  wife,  Mary,  died.    On 
the  6th  day  of  the  following  November,  Jacob  Smiley,  on  being  ad- 
yised_that  the  deed  to  the  heirs  of  James  S'miley  was  not  yalid,  exerirU. 
eda  deed_tflJais_children,(^arah,  Jacob  M.,  WilHam  and  Elizabeth, Vnd 
placed  them  inthe^hands'^  of  Joseph~7V  Smiley,  and'Vrepeated  the'in- 


330  DERIVATIVE  TITLES  (Part  2 

structions  formerly  given  him.  On  the  same4ay  he  executed  this  codi- 
cil tohis  willj  "Whereas,  my  beloved  wife^eparted  this  life  on  the 
24th  day  of  September,  1875,  I  now  wish  the  propertv  bequeathed  to 
her  in  my  will  equally  divided  among  all  my  chijdren."  On  the  18th 
day  of  December,  1875,  Jacob  Smiley  married  the  appellee,  Agnes 
Smiley.  On  the  15th  day  of  March,  li5//,  he  died,  leavmg  no~children 
by  his  last  marriage.  On  that  day  Joseph  T.  Smiley  delivered  the  d^eds 
placed  in  his  hands  to  the  respective  grantees  therein  named.  _  Ho 
consideration  was  paid  by  any  of  the  grantees.  The  appellee  was  ad- 
vised prior  to  her  marriage  that  the  only  estate  which  Jacob  Smiley 
owned,  or  in  which  she  would  have  any  claim,  was  two  parcels  in  sec- 
tion eleven. 

The  judgment  of  the  court  gave  the  plaintiff  an  estate  for  life  in  "all 
the  land,  as  well  that  part  described  in  the  deeds  placed  in  the  hands 
of  Joseph  J.  Smiley  as  that  of  which  no  conveyance  was  made. 
/^  The  question  whether  thp  pppfUpp  \%  entitled  to  a  life-estate_ia  the 

,  land  embraced  in  the  deeds  placed  in  the  hands  of  Joseph  1.  Smilev. 
depends  upon  the  time  those  deeds  took  effect.  If  they  took  effect  at 
the  time  of  their  conditional  delivery  to  him,  then,  it  is  clear,  she  has 
no  interest  in  the  lands,  because  her  husband  was  not  seized  of  them 
at  any  time  during  coverture.  The  case,  therefore,  turns  upon  the 
effect  of  that  conditional  delivery.  If  that  delivery  was  sufficient  to 
vest  title  in  the  grantees  as  of  that  date,  then  the  appellee  can  have  no 
claim  in  the  land  as  against  them. 

In  deciding  this  question  we  attach  importance  to  the  fact  that  the 
appellee  was  advised  before  marriage  what  land  Jacob  Smiley  owned 
and  in  which  she  would  acquire  an  interest.  She  was,  at  least,  put 
upon  inquiry,  and  if  she  failed  to  make  inquiry  she  is  not  in  a  situation 
to  aver  that  she  had  no  notice.  Doubtless,  marriage  is  a  valid  con- 
sideration, and  if  Mrs.  Smiley  had  not  been  informed  as  to  what  lands 
her  husband  owned,  a  dift'erent  question  would  confront  us.  We  do 
not,  however,  decide  that  the  deeds  would  not  have  been  valid  even  if 
she  had  not  been  put  upon  inquiry,  for  that  is  not  now  necessary.  We 
do  decide  that,  as  she  had  notice  prior  to  marriage  what  land  her 
husband  then  owned,  she  can  not  successfully  assert  her  marital  rights 
in  the  land  embraced  in  the  deeds  placed  in  the  hands  of  .  Joseph  J. 
Smiley. " 

There  was  here  a  cojiilijioj^l.ilelivejx.fqr  the  deeds  were  placed  in 
the  hands  of  Joseph  J.  Smiley  with  explicit  instructions  to  deliver  th.£tP 
to  the  grantees  upon  the  happening  of  a  designated  event,  that  of  the 
death  of  the  grantor,  in  this  particular  the  case  differs  from  that  of 
Jones  V.  Loveless,  99'  Ind.  317.  It  differs,  also,  from  that  case  in  an- 
other particular,  and  that  is  this :  The  party  who  here  assails  the  deeds 
had  notice  that  the  grantor  did  not  own  the  lands  einbraced  in  them. 
Tills  case  is,  m  all  material  respects,  like  Owen  v.  Williams,  114  Ind. 
179,  15  N.  E.  678,  and  the  principle  there  asserted  applies  to  it  with 
great  force.    Our  conclusion  is  well  sustained  by  authority.     Hockett 


Ch.  2)  EXECUTION   OF   DEEDS  331 

V.  Jones,  70  Ind.  227;  Crooks  v.  Crooks,  34  Ohio  St.  610;  Hatch  v. 
Hatch,  9  Mass.  307,  6  Am.  Dec.  67 ;  Stephens  v.  Rinehart,  72  Pa.  434; 
Morse  v.  Slason,  13  Vt.  296;  Tooley  v.  Dibble,  2  Hill  (N.  Y.)  641. 

The  trial  court  erred  in  its  conclusions  of  law  upon  the  facts  stated 
in  the  finding. 

Tlie  appellee  has  filed  a  motion  to  dismiss  the  appeal  as  to  all  of  the 
appellants  except  William  Smiley,  and,  upon  the  admissions  made  in 
the  answer  to  this  motion,  the  appeal  must  be  dismissed  as  to  all  the 
appellants,  except  the  one  named. 

It  is,  therefore,  adjuds^ed  that,  as  to  all  the  appellants  except  William 
Smiley,  the  appeal  is  dismissed,  and  that,  as  to  him,  the  judgment  is 
reversed,  with  instructions  to  restate  the  conclusions  of  law,  and  enter 
judgment  in  his  favor.^^ 


RATHMELL  v.  SHIREY. 
(Supreme  Court  of  Ohio,  1890.     60  Ohio  St.  1S7,  53  N.  E.  1098.) 

The  cause  was  tried  in  the  circuit  court  upon  appeal  from  the  court  *    -j  'g  j 

of  common  pleas.  The  plaintiff  in  error  prayed  for  a  decree  of  the  ^'*^*-««'''**"fi^ 
court  setting  aside  a  deed  for  one  hundred  acres  of  land  made  by  his  rdjLx^^^r''* 
testator  tojthe  defendant ,  J[^i^omas^_g^l]2men ,  in  trust  for  the  defendant^'"'^ 
William  C.  Shirey  and  others,  and  an  order  for  its  sale  for  the  payment 
of  debts  of  his  testator,  alleging  in  his  petition  and  amendments  thereto 
tiie  insufficiency  of  the  assets  of  the  testator  to  pay  his  debts ;  that 
the  instrument  in  question  was  signed  by  the  testator  contemporane- 
ously with  the  execution  of  his  will  and  upon  no  consideration  except 
that  expressed,  to-wit,  love  and  affection  for  his  son  William  and  one 
dollar:  that  said  instrument  was  not  then,  nor  ever  in  the  lifetime  of 
the  testator  delivered  to  said  trustee^  but  was  delivered  as  an  escrow 
to  one  Zeno  C.  Payne  to  be  bv  him  placed  on  record  and  delivered  Jo 
said  trustee  after  the  death  of  sajd  testator,  the  testator  remaining  in 
possession  and  control  of  the  premises  and  paying  taxes  thereon  until 
his  death,  a  portion  of  his  debts  being  contracted  after  the  signing  of 
said  instrument  and  credit  being  extended  to  him  on  account  of  his 
appar^nr^  owiiership  of  said  premises,  and  that  said  deed  delivered  to 
said  trustee  after  the  death  of  the  plaintiff's  testator  was  fraudulently 
made  and  that  it  hinders,  delays  and  defrauds  his  creditors.  The  an- 
swer admittedjlie  insufficiency  of  the  assets  of  the  testator's  estate  to 
pay  his  debts.  On'  denial  by  the  defendants  of  the  plaintiff's  allegations 
as  to  the  fraudulent  character  and  effect  of  tlie  instrument  the  cause 
was  tried  in  die  circuit  court  where  upon  request  the  conclusions  of 
fact  and  law  were  separately  stated  as  follows : 

On  the  fourth  day  of  December,  1891,  Lewis  Shirey,  then  in  full 


21  Vorheis  v.-  Kitch,  8  Phila.  554  (1871),  ace,  the  deed  there  beirrg~«ft,.gscrow. 
See  Ladd  v.  Ladd,  14  Vt.  185  (1842),  where  the  widow  was  held  entitle 
dower,  the  grantor  having  been  deemed  to  have  died  seised. 


"^^•^^ 


532 


DERIVATIVE   TITLES 


(Part 


\ji 


A 


life,  was  seized  of  160  acres  of  land  in  Hamilton  township,  Franklin 
county.  Ohio,  upon  60  acres  of  which  there  was  a  mortgage  incum- 
brance of  $1,500;  that  on  said  December  4,  1891,  said  Shirey  executed 
/a  trust  deed  toThomas  Rathmell  for  the  remaining  100  acres  thereof 
)  for  the  use  of  his  son,  William  C.  Shirey,  for  life,.remamder  to  the  chil- 
/  dren  of  William  C.  Shirey.    That  on  the  same  day  he  executed  his_will 
'  disposing  of  60  acres,  the  remainder  of  his  land ;  the  same  being  charg- 
ed with  the  mortgage  incumbrance  aforesaid  to  his  daughter,  Margaret 
Thompson,^  lliat  at  the  time  of  the  execution  of  said  deed,  to-wit  De- 
cember  4,  1891,  he  delivered  the  same  to  one  Zeno  C.  Payne,  his  attor- 
ney, who  made  the  following  indorsement  thereon  in  said  Shirey's  pres- 
ence, to-wit:    "Deposited  with  me  in  escrow  to  be  placed  on  record  at 
the  death  of  the  grantor  and  delivered  to  the  grantee  therein  named. 
Z.  C.  Payne."    At  the  time  of  said  endorsement  said  Shirey  instructed 
said  Payne  to  place  this  deed  on  record  at  the  time  of  his  death  and 
t  deliver  the  same  to  the  grantee  therein  named.    That  at  the  time  of  the 
execution  of  said  deed  and  will  in  addition  to  the  mortgage  incum- 
brance of  $1,500,  Shirey  was  indebted  to  divers  persons  in  the  sum  of 
$500,  which,  in  addition  to  the  $1,500  mortgage  incumbrance,  remained 
unpaid  at  the  time  of  his  death,  which  occurred  in  February  in  1895. 
Shirey  remained  in  possession  and  control  of  said  realty,  and  paid  the 
taxes  thereon  during  his  life  time,  and  contracted  subsequently  to  t_he 
executiotTof  said  deed  other  debts  to  the  amount  of  about  S1.j25.  said 
incTeHtedness  of  $1,32d  remaining  unpaid  at  the  time  of  his  death. 

Shirey  died  February,  in  1895,  leaving  defendant,  Crissie  Shirey,  his 
widow,  and  said  son  and  daughter  surviving  him.  Said  trust  deed  wa s , 
immediately  upon  Shirey's  death,  placed  on  record  in  the  recorder's 
office  of  Franklin  county,  Ohio,  and  then  handed  to  Thomas  Rathmell, 
the  grantee  therein  named,  who,_  immediately  upon  Shirey's  death  an d 
in  execution  of  the  trust  created  by  said  trust  deed,  entered  into  an d 
took  possession  as  such  trustee  of  said  100  acres  of  land,  and  is  now 
and  has  been  continuously  since  the  death  of  said  Lewis  Shirey  in  pos- 
session thereof.  That  said  60  acres  of  land  devised  to  Margaret 
Thomp'^on  by  qairl  wijf  have  been  sold  by  plaintiff  and  the  proceeds  of 
said  sale  are  not  more  than  sufficient  to  pay  said  mortgage  indebtpflnf'c;g 
of  $1,500,  with  interest,  widow's  dower  in  said  60  acres  and  costs  of 
sale.  No  provision  for  the  widow  was  made  either  in  thedeedjii  trust 
nrjri  thq  A^ijll^^t  tTTeTTiiiT'Trr  the  pypn^^  dperTthe  grantor, 

Shirey,  did  not  retain  property  clearly  and  beyond  doubt  sufficient  to 
pay  his  existing  indebtedness;  and  of  which  indebtedness  about  $700 
(beingj-insecured  debts)  is  and  remains_ unpaid,  and  that  umesT^gaf^TOO 
acresof  land  or  some  part  thereof,  be  sold,  the  general  creditors  of  said 
Lewis  Shirey  will  receive  notKmgoiitheir  clairn.  as  cost  of  administra- 
tion, costs  of  last  sickness  and  funeraland  the  mortgage  indebtedness 
of  $1,500,  with  interest,  and  widow's  dower  and  allowance,  having 
consumed  the  proceeds  of  said  60  acres  of  land  and  all  the  personal 
estate  of  said  Lewis  Shirey.    That  said  Lewis  Shirey  injthe_£2^££iition 


Ch.  2) 


EXECUTION  OF   DEEDS 


333 


of  said  deed  acted  in  perfect  good  faith  and  without  any  intentional 
fraud,  ''fhat  said  Lewis  Shirey  when  contracting  said  debts  subse- 
quent  to  the  execution  of  said  trust  deed  was  guilty  of  no  misrepresen- 
tations whatever,  credit  having  been  extended  to  him  without  any 
inquiry  or  investigation  by  the  persons  so  lendmg  him  credit  as  to 
how  much  land  or  property  he  then  owned,  said  creditors  having  knowl- 
edge that  said  Shirey  was  in  the  possession  and  control  of  160  acres  of 
land  and  without  knowledge  that  he  had  made  said  trust  deed.  Up- 
on the  foregoing  facts  the  court  finds  the  law  to  be  as  follows,  to-wit : 

First — That  said  trust  deed  passed  the  title  to  said  grantee,  Thomas 
Rathmell,  trustee,  as  ot  tlie'^te  of  its  first  delivery,  to-wit.  December 
4,  1891,  subject  to  the  dower  estate  of  Crissie  Shirey. 

Second — There  was  no  intentional  fraud  in  the  execution  and  deliv- 
ery of  said  deed,  and  that  the  same  is  valid  as  to  the  debts  ot  .Lewis 


Shirey  created  after  nprember  4,   1RQ1.    / ^C^Z^  t^ £^COt<4Zi.^u^    a^ ^mJ^ 
Third — That  said  conveyance  is  void  as  against  the  debts  existing  at 


^ 


^ 


the  time  of  its  execution. 

Fourth — That  plaintiff  is  entitled  to  sell  so  much  of  said  100  acres 
of  land  as  may  be  necessary  to  pay  the  outstanding  debts  of  Lewis 
Shirey  existing  December  4.  1891.  with  the  accrued  interest  thereon. 
To  each  and  all  of  which  findings  of  fact  so  made  by  the  court  as  afore- 
said,  and  each  and  every  conclusion  of  law  thereon  the  plaintiff  excepts. 

A  bill  of  exceptions  was  taken  embodying  all  of  the  evidence,  and  this 
petition  in  error  prays  for  the  reversal  of  the  judgment  of  the  circuit 
court  because  its  findings  of  fact  are  not  supported  by  the  evidenceand 
because  its  conclusions  of  law  were  not  justified  by  the  fqcts  found. 

Shauck,  J.  The  case  presented  permits  us  to  assume,  without  de- 
ciding, that  in  view  of  the  facts  found  by  the  circuit  court  there  was 
such  a  delivery  of  the  deed  as  would  give  it  effect  as  against  the  heirs 
at  law  of  the  grantors,  and  that  as  to  them  the  deed  would,  by  relation, 
take  effect  at  the  date  when  the  instrument  was  delivered  as  an  escrow. 
We  have  to  determine  whether  it  was  effective  to  pass  the'  title  to  the 
grantee  discharged_of  debts  of  tlie  granjor^contracted  between  Decem-  \^^''   - 

ber,  1891,  when  the  instrument  was  delivered  as  an  escrow  and  Febru-  ^^^^--'Tii)  / 
ary,  1895,  when  upon  his  death  it  was  delivered  to  the  grantee,  as  was  ^^  ^\yi/0^ 
held  by  the  circuit  court.  ^^^^'^ 

I  Delivery  being  essential  to  the  efficacy  of  a  deed,  it  is  obvious  that 
the  title  does  not  actually  pass  until  that  which  was  an  escrow  becomes 
a  deed  by  virtue  of  its  delivery  as  such,  or  at  least,  untilthe  satisfac- 
tion of  the  conditions  prescribed  for  its  final  delivery.  Accordingly  the 
general  rule  is  that  the  title  does  not  pass  until  the  second  delivery,  or 
urftfrthe  conditions  prescribed  therefor  are  satisfied.  Itwould  not  be 
practicable  to  cite  all  the  cases  in  which  the  general  rule  is  so  stated. 
Many  of  them  are  collected  by  Mr.  Devlin  in  a  note  to  section  328  of 
his  work  on  deeds.  To  this  rule  there  is  a  well-recognized  exception. 
The  rule  and  the  exception  are  thus  stated  by  Chancellor  Kent:'  22^"" 
orally  an  escrow  takes  eft'ect  from  the  second  delivery  and  is  to  be  con- 


yit^  e*^jiju^. 


334 


DERIVATIVE  TITLES 


(Part  2 


sidered  as  the  deed  of  the  party  from  that  time:  but  this  geppt-f^l  riilp 
does  not  apply  when  justice  requires  a  resort  to  fiction.  The  relation 
back  to  the  first  delivery,  so  as  to  give  the  deed  effect  from  that  time, 
is  allowed  in  cases  of  necessity,  to  avoid  injury  to  the  operation  of  the 
deed  from  events  happening-  between  the  first  and  second  d^jj^ery. 
*  JJut  if  the  fiction  be  not  required  for  any  such  purpose,  it  is 
not  admitted  and  the  deed  operates  according  to  the  truth  of  the  case, 
from  the  second  delivery.  It  is  a  general  principle  of  law  that  in  all 
cases  where  it  becomes  necessary  for  the  purposes  of  justice  that  the 
true  time  when  any  legal  proceeding  took  place  should  be  ascertained. 
the  fiction  of  law  introduced  for  the  sake  of  justice  is  not  to  prevail 
against  the  f^ft. "    4  Com.  454. 

Whatever  terms  may  be  employed  in  stating  the  exception,  the_xd.a- 
tion  back  to  the  first  delivery  is  always  to  accomplish,  and  never  to  de- 
feat, justice.^  Bearing  in  mind  the  purpose  of  this  exception  and  the 
fact  that  the  deed  before  us  was  without  any  substantial j:onsideration, 
it  is  quite  apparent  that  the  conclusion  of  the  circuit  courTthat  the 
relation  back  should  be  allowedjto  cut  ofi^  the  claims  of  those  who  gave 
credit  to  the  testator  between  the  first  and  second  deliveries,  and  with- 
out knowledge  of  the  instrument,  is  erroneous.  That  conclusion  de- 
rives no  support  from  Crooks  v.  Crooks,  34  Ohio  St.  610,  or  Ball  v. 
Foreman,  Z7  Ohio  St.  132,  where  the  title  was  held  to  pass  as  of  the 
date  of  the  first  delivery  for  purposes  clearly  within  the  exception  as 
■above  stated. 

The  judgment  of  the  circuit  court  will  be  so  modified  as  to  order  the 
plaintiff  in  error  to  sell  so  much  of  the  land  in  controversy  as  may  be 
necessary  for  the  payment  of  all  the  debts  of  the  testator.  Judgn\ent 
accordingly.^^ 


WHYDDON'S  CASE. 
(Court  of  Comiuou  Pleas,  1596.     Cro.  Eliz.  520.) 

Annuity.  The  defendant  saith,  that  he  delivered  the  deed  of  annuity 
to  the  plaintiff  as  an  escrow,  to  be  his  deed  upon  a  certain  condition  to 
be  performed,  otherwise  not :  and  that  the  condition  was  not  yet  per- 
formed.    The  plaintiff  demurred;  and,  without  argument,  adjudged 

22  Brown  v.  x\usten,  35  Barb.  3-11  (1861),  contra. 

In  Eanken  v.  Donovan,  46  App.  Uiv.  225,  61  N.  Y.  Supp.  542  (1899),  1G6  N.  Y. 
626,  GO  N.  P].  1119  (1901),  the  grantor,  after  making  a  deed  and  putting  same 
into  the  custody  of  a  third  party,  to  be  delivered  to  the  grantee  at  death  of 
grantor,  made  a  will  purporting  to  devise  the  same  property  to  another.  Was 
the  will  effective  as  to  that  property? 

A  woman  made  a  deed  of  certain  lands  to  her  son,  and  left  the  deed  with  a 
third  party  to  be  handed  to  the  grantee  on  her  death.  Later  she  made  a  mort- 
gage of  the  same  lands  to  secure  a  loan.  After  the  mother's  death  the  mort- 
gagee sought  to  foreclose  the  mortgage.  The  trial  court  excluded  the  evidence 
offered  by  the  son  to  prove  the  execution  of  the  deed  to  him  and  that  the  mort- 
gagee had  notice  of  said  deed.  Was  the  court  right V  See  Wittenbroek  v.  Cass, 
110  Cal.  1,  42  Pac.  300  (1S95). 


Ch.  2)  EXECUTION   OP  DEEDS  335 

for  the  plaintiff:  for  the  delivery  of  a  deed  cannot  be  averred  to  he  to  7^ 

the  party  himself  as  an  escrow.     Vide  19  Hen.  VIII,  pi.  8,  29  Hen. 
VIII,  and  Morice's  Case,  Dyer,  34,  b,  35,  a,  in  margin. 


^l^'iiu^.XT 


HAWKSLAND  v.  GATCHEL. 

(Court  of  Queen's  Bench,  1601.     Cro.  Eliz.  S35.) 


Debt  upon  an  oblia"ation.  The  defendant  pleads  that  he  delivered 
that  obligation  to  the  plaintiff,  as  an  escrow  to  be  his  deed,  if  he  per- 
formed such  a  condition,  viz.,  to  permit  him  to  enjoy  such  corn;  and 
al ledgeth,  that  the  condition  was  not  performed,  and  so  not  his  deed. 
And  hereupon  the  plaintiff'  demurs.  Clerk,  for  the  plaintiff,  argued, 
that  one  cannot  deliver  a  deed  to  the  party  himself,  to  be  an  escrow; 
and  to  that  purpose  cited  the  19  Hen.  VIII,  pi,  43  Edw.  II,  pi,  28, 
where  it  is  said,  that  this  condition  cannot  be  averred  upon  the  delivery 
to  the  party  himself,  in  avoidance  of  the  deed,  without  shewing  a  deed 
thereof. 

Gawdy.  There  is  not  any  difference,  where  it  is  delivered  to  the 
party  himself  as  an  escrow,  and  where  to  a  stranger;  and  the  case  of 
19  Hen.  VIII,  is  so;  because  the  deed  was  delivered  to  the  party  him- 
self first,  as  his  deed  upon  condition,  &c.,  in  which  case  the  deed  is  ab- 
solute, and  takes  eft'ect  as  his  deed  upon  the  first  delivery ;  and  it  can- 
not be  avoided  by  the  condition.  But  when  it  is  first  delivered  as-an 
escrow,  although  it  be  to  the  party  himself,  it  is  clear  that  it  is  not  his 
deed  until  it  be  performed"  And  so  is  29  Hen.  Vill,  Dyer,  34,  in  Mor- 
ris and  Leigh's  Case. 

Poi'HAM  accord. ;  for  if,  upon  the  delivery,  the  words  spoken  by 
the  obligor  purport  that  it  shall  not  be  his  deed,  it  is  clear  it  is  not :  as 
where  one  causeth  an  obligation  to  be  written  and  sealed  in  my  name, 
and  brings  it  unto  me,  and  prays  that  I  would  deliver  it  as  my  deed, 
and  I  say,  "Do  you  such  a  thing,  and  take  it  as  my  deed^  otherwise  not ;" 
it  is  clear,  that  it  is  not  my  deed  until  the  thing  be  performed.  So  if 
the  obligor  saith,  "Take  it  to  you,  I  will  not  deliver  it  as  my  deed;" 
it  is  not  his  deed.  Wherefore  in  the  principal  case,  when  the  obliga- 
tion is  delivered  as  an  escrow,  by  express  words,  it  is  not  possible  that 
it  should  be  his  deed,  for  the  words  are  not  sufficient  to  make  it  so 
until  the  condition  be  performed.  But  if  it  be  once  delivered  as  his 
deed,  it  rannnt  afterwards  be  defeated  by  a  condition,  if  the  condition 
be  not  in  writing ;  but  here  the  condition  is  precedent,  so  as  it  was  not 
his  deed  until  it  were  performed,  and  therefore  a  conditional  delivery 
may  be  averred  without  writing.    Wherefore,  &c.  , 

Fenner  to  the  same  intent:  for  although  dift'erence  hath  been  taken, 
that  a  deed  shall  not  be  delivered  to  the  party  himself  as  an  escrow, 
but  to  a  stranger;  and  the  reason  hath  been  alleged,  because  when  it  is 
delivered  to  the  party  himself,  there  cannot  be  a  second  delivery, 


336  DERIVATIVE  TITLES  (Part  2 

whereupon  the  writing  should  take  his  effect  as  a  deed ;  that  seemeth 
to  be  no  difference :  for  when  it  is  deHvered  to  the  party  as  an  escrow, 
the  words  are  not  suf^ent  to  make  it  to  be  his  deed,  until  the  condi- 
tion be  performed.    Wherefore,  &c. 

And  of  that  opinion  was  ClExch.    Wherefore  it  was  adjudged  for 
tlie  defendant.    Vide  Cro.  Eliz.  520,  Whyddon's  Case. 


WILLIAMS  V.  GREEN. 

(Court  of  Coinuion  Pleas,  1G02.     Cro.  Eliz.  SS4.) 

Debt  upon  a  bill.  The  defendant  pleads,  that  the  said  bill  was  deliv- 
ered to  the  plaintiff  as  a  schedule,  upon  condition,  that  if  tlie  plaintiff 
delivered  unto  the  defendant  an  horse  upon  such  a  rlay^  tViat  y\-]f>n  \f 
should  be  his  deed,  otherwise  not :  and  that  the  plaintiff  had  not  deliver- 
ed the  said  horse  unto  him ;  and  so  non  est  factum. — And  it  was  there- 
upon demurred  :  and  resolved  by  the  whole  Court  to  be  no  plea ;  for.  a 
deed  cannot  be  delivered  to  the  party  himself  as  an  escrow,  because  then 
a  bare  averment  without  any  writing  would  make  void  every  deed. 
Wherefore  it  was  adjudged  for  the  plaintiff.  See  Whyddon's  Case, 
Cro.  Eliz.  520. 


LONDON  FREEHOLD  &  LEASEHOLD  PROPERTY  CO.  v. 

SUFFIELD. 

(Chancery  Division.     [1S97]  2  Ch.  60S.) 

d  This  was  an  action  by  the  plaintiffs,  who  were  mortgagors,  against 

,  the  mortgagees,  to  set  aside  a  mortgage  deed  for~i9000..  and  arose 

out  of  the  frauds  of  one  Llewellyn  Malcolm  Wynne,  a  solicitor,  who 
had  since  absconded. 

The  facts,  so  far  as  it  is  necessary  to  state  them  for  the  purposes  of 
the  present  report,  were  as  follows.  Llewellvn  IMalcolm  Wynne  was  a 
solicitor  carrying  on  business  in  London  in  partnership  with  his  broth- 
er. Campbell  Mountague  Edward  Wynne,  under  the  firm  of  "Wynne 
&  Son." 

L.  M.  Wynne  was  one  of  the  four  trustees  "of  the  marriage  settle- 
ment of  Sir  Frederick  Leopold  Arthur^and  the  firm  acted  as  solicitors 
to  the  trust  He  was  also  the  managing  director  of  the  plaintiffs,  the 
London  Freehold  and  Leasehold  Property  Company,  Limited,  incorpo- 
rated in  1883.  In  ]May,  1886,  Wyrme  &  Son,  who  carried  on  business 
as  bankers  as  well  as  solicitors,  were  appointed  managers  and  bankers 
ol  the  company  at  a  commission.  \Vynne  &  Son  were  also  '^n]^^ritnr<; 
to  the  company;  Wynne  &  Son's  office  was  the  office  of  the  company, 
and  Wynne  &  Son's  conveyancing;  clerk.  Tyler,  was  the  secretary  to 
the  company.     The  company's  accounts  were  kept  by  L.  M.  Wynne, 


/  ' 


Ch.  2)  EXECUTION   OF  DEEDS  337 

whose  duty  it  was,  as  acting  banker  and  manager,  to  pay  the  company's 
money  received  by  him  or  his  firm  into  the  bank  of  "Wynne  &  Son." 

Child  &  Co.  were  Wynne  &  Son's  bankers,  and  in  May,  1892.  Wynne 
&  Son,  as  the  soUcitors  to  the  trustees  of  Arthur's  settlement,  received 
a  sum  of  £9000.,  part  of  the  trust  funds,  and  paid  it  intn  Child's  hank 
to  the  credit  of  their  own  account,  pending  reinvestment.  It  appeared 
that  one  of  the  trustees,  Mr.  Somerset,  knew  that  Wynne  &  Son  had 
the  money  in  their  hands  for  reinvestment. 

Early  in  1893  the  directors  of  the  plaintiff  companv,  acting  on  L.  M . 
Wynne's  advice,  proposed  to  take  steps  for  g'raduallv  paying  off  certain 
mortgages  on  properties  of  the  company, '  bearing  interest  at  5  per 
cent,  by  raising-a^^m  of  £9000..  at  a  lower  rate  of  interest.  The  mode 
oi  raising  tlm  sumand  all  the  details  of  the  arrangements  for  the  pur- 
pose they  left  to  Wynne,  in  whom  the  directors  placed  complete  confi- 
dence, he  telling  the  board  that  he  had  clients  who  would  lend  the 
money.  In  June,  1893,  a  mortgage  was  prepared  by  counsel  on  \\[ynne 
&  Son's  instructions,  for  £9000.,~to  the  Arthur  trustees  upon  the  se- 
curity of  certain  leasehold  properties  of  the  companv  consisting  of  a 
block  of  warehouses  called  "Victoria  Warehouses,"  and  two  houses  in 
Bury  Street,  London,  being' properties  comprised  in  the  existing  mort- 
gages. 

On  June  19,  Messrs.  Worley  and  Ryder,  two  of  the  company's  di- 
rectors, were  informed^ by  Wynne  &  Son  that  a  meeting  of  the  board 
would  be  held  on  the  22d.  A  meeting  of  the  directors  was  accordingly 
held  on  June  22,  1893.  An  agenda  paper  for  the  meeting  was  prepared 
by  Tyler,  and  this_paper  stated  that  part  of  the  business  would  be_to 
seal  the  £9000.  mortgage,  and  another  mortgage.  The  directors  present 
on  the  22d  were  Wynne,  Worley.  and  Ryder.  Tyler,  the  secretary,  was 
also  present.  The  mortgage  for  £9000.,  engrossed  for  execution,  but 
with  date  (except  the  year)  and  days  for  payment  left  in  blank,  was 
produced  and  discussed,  and  a  statement  of  the  properties  comprised 
in  the  mortgages  which  were  to  be  paid  off  was  also  produced.  The 
mortgage  reserved  mterest  at  5Vj.  per  cent.,  reducible  to  4^  on  punc- 
tual payment.  After  explanations  by  Wynne,  it  was  "resolved  that 
the  seal  be  affixed  to  the  mortgage  for  £9000.  on  Victoria  Warehouses 
and  Bury  Street,"  and  to  the  other  mortgage,  and  both  mortgages  were 
thereupon  sealed  with  the  company's  seal.  Both  Worley  and  Ryder 
signed  the  i9000.  mortgage  as  directors.  Tyler  also  signed  it  as  sec- 
retary. No  cash  then  passed,  and  the  directors  were  well  aware  of  that 
fact :  nor,  as  a  matter  of  fact,  did  the  £9000.  expressed  to  be  advanced 
to  the  company  ever  find  its  way  into  the  company's  coffers  at  all. 
The  blanks  in  the  mortgage  were  not  filled  up  at  the  meeting,  but  the 
date  of.  the  mortgage,  December  29,  1893.  was  subsequently  filled  irLby 
the  law  stationer  when  it  was  sent  to  be  stamped.  The  blanks  left  for 
the  days,  of  payment  were  never  filled  in.  The  document  thus  sealed 
was  then  given  to  or  left  with  Wynne,  who,  on  June  28,  1893,  wrote  to 
Aig.Prop.— 22 


Js^if>^ 


338  DERIVATIVE  TITLES  (Part  2 

Colonel  Lloyd,  one  of  the  Arthur  trustees,  that  the  £9000.  had  been 
advanced  on  that  security. 

On  March  2,  1895.  L.  M.  Wvnne  absconded,  and  on  March  9  he  was 
adjudicated  bankrupt.  On  the  16th  his  brother  was  also  adjudicated 
bankrupt,  and  on  tlie  same  day  a  trustee  was  appointed  in  the  bankrupt- 
cies  of  the  property  of  the  firm  and  of  the  separate  property  of  jU_M. 
Wynne. ''After  the  failure  of  the  firm  the  mortgage  of  December  29, 
1893,  was  foundjn  a  "temporary  box"  belonging  to  them  in  whichthey 
kept  miscellaneous  deeds  likely  to  be  wanted  for  temporary  purposes 
or  for  stamjjjng.  The  mortgage  had  not  been_ent£i£dJn  the  company's 
register  of  mortgages,  nor  was  it  re^jalgJ^d  in  the  Middlesex  Registry 
until  May  22,  1897,  the  day  after  Kekewich,  J.,  gave  judgment  in  the 
present  action.  !AI)0ut  the  same  time,  and  with  a  view  to  such  regis- 
tration, one  of  the  Arthur  trustees  executed  the  mortgage. 

The  result  of  inquiries  instituted  into  Wynne  &  Son's  affairs  aftef 
their  failure  shewed  that  on  June  1,  1893,  they  had 'transferred  £9000. 
from  their  account  with  the  trustees  of  Arthur's  settlement  to  the  credit 
of  the  plaintiff  company ;  the  following  credit  entry,  headed  "The  Lon- 
don  Freehold  and  Leasehold  Property  Company  Mortgage  Account" 
being  found  in  Wynne  &  Son's  ledger:  "By  transferred  from  Sir  F. 
L.  Arthur's  settlement  trustees,  amount,  advanced  on  mortgage  at  4^2 
per  cent.,  £9000."  As  already  stated,  the  £9000.  never  found  its  way 
in  cash  to  the  conipany  at  all,  nor  was  it  ever  applied  in  discharge  of 
tlTe_existino-  mortgages,  the  entry,  therefore,  being,  as  the  company  £qii- 
tended,  fictitious  and  fmndnlent.  It  appeared  that  Tyler,  the  clerk  to 
Wynne  &  Son  and  secretary  to  the  company,  had  access  to  the  ledger ; 
but  he,  and  Worley  and  Ryder  also,  in  giving  their  evidence  in  the  pres- 
ent action,  said  they  knew  nothing  about  any  of  the  entries  in  Wynne 
&  Son's  books,  and  never  saw  or  knew  of  the  particular  entry  in  ques- 
tion. 

On  March  21,  1896,  the  plaintiff  company  brought  this  action  against 
the  defendants,  the  Arthur  trustees  (including  1^.  M.  Wvnne).  and  the 
trustee  in  bankruptcy,  claiming  a  declaration  that  the  mortgage  of 
December  29,  1893,  was  not  a  valid  and  effectual  security  and  was  not 
binding  on  the  plaintiffs,  and  that  the  same  might,  if  and  so  far  as 
might  be  necessary,  be  set  aside  and  cancelled ;  delivery-up  of  the  title- 
deeds  relating  to  the  mortgage;  and  injunction  against  enforcing  the 
security;  and,  in  case  the  Court  should  be  of  opinion  that  the  mort- 
gage was  valid  and  effectual,  a  declaration  that  the  plaintiffs  were  enti- 
tled to  prove  for  the  £9000.  as  money  had  and  received  by  L.  M. 
Wynne  as  their  solicitor,  either  against  the  joint  estate'  of  the  firm  of 
Wynne  &  Son,  or  against  the  separate  estate  of  L.  M.  Wynne,  as  they 
might  elect;  and  all  necessary  accounts  and  inquiries.  Defences  were 
delivered  by  all  the  defendants  except  Wynne,  who,  it  appeared,  had 
by  an  order  made  by  North,  J.,  on  April  25,  1896 — that  is,  since  the 
issue  of  the  writ — been  discharged  from  the  trusts  of  the  Arthur  set- 
tlement. 


Ch.  2)  EXECUTION   OF   DEEDS  339 

The  action  came  on  for  trial  with  witnesses  before  Kekewich,  J., 
on  May  20,  1897. 

The  witnesses  examined  were  Messrs.  Worley  and  Ryder,  two  of  the 
directors  of  the  plaintiff  company,  Mr.  Tyler,  the  late  secretary  of  the 
company,  Mr.  C.  M.  E.  Wynne,  and  Mr.  Dalgleish,  an  accountant  who 
had  been  auditor  of  the  company,  and  was  its  present  secretary,  having 
been  appointed  to  that  offxe  in  place  of  Tyler  shortly  after  Wynne  & 
Son's  failure.  The  effect  of  their  evidence  sufficiently  appears,  for 
the  purpose  of  this  report,  from  the  judgments  of  Kekewich,  J.,  and  the 
Court  of  Appeal. 

Oct.  30.  The  judgment  of  the  Court  (LindlEy,  M.  R.,  and  Lord 
Luni.ovv  and  Chitty,  L.  JJ.)  was  delivered  by 

Li.vdlKy,  M.  R.^*  This  is  an  appeal  by  the  plaintiffs  from  a  deci- 
sion of  Kekewich,  J.,  refusing  to  set  aside  a  mortgage  executed  by  them 
for  securing  £9000.  to  Lord  Suffield  and  others,  who  were  the  trustees 
of  a  settlement  called  Arthur's  settlement. 

[His  Lordship  then  reviewed  the  facts  of  the  case  to  the  effect 
above  stated,  observing  that  the  relation  of  Wynne  &  Son  to  the  plain- 
tiff" company  was  an  all-miportant  element  in  the  case ;  that  as  bankers 
and  managers  they  kept  the  company's  accounts,  it  being  their  duty 
as  managers  to  pay  the  company's  money  received  by  them  as  man- 
agers into  their  bank ;  that,  moreover,  it  would  be  in  accordance  with 
the  ordinary  course  of  business  for  a  banker,  w'ho  had  to  pay  mon£.v 
for  one  customer  to  another,  to  effect  such  payment  by  book  entries, 
that  is.  by  debiting  one  customer  and  crediting  another  in  their  respec- 
tive accounts,  it  not  being  necessary  that  any  cash  should  actually  pass 
from  the  one  customer  to  the  other :  also  that  it  was  clear  from  the 
evidence  that  the  directors  of  the  plaintiff  company  left  all  the  ac- 
counts to  Wynne  &  Son,  and  never  troubled  themselves  about  any 
books  except  the  minute-books  and  the  company's  pass-book  \vitR 
Wynne  X^  Snn:  and  that  the  plamtitts  had  tailed  to  prove  that  the 
credit  entry  of  June  1,  1893,  was  fictitious  and  fraudulent.  His  Lord- 
ship, after  referring  to  the  evidence  as  to  the  preparation  of  the  mort- 
gage, its  production  at  the  meeting  of  the  company's  directors  on  June 
22,  1893,  and  its  sealing  with  the  company's  seal,  proceeded :] 

Tlie  document  thus  sealed  was  given  to  or  left  with  Wynne :    b u t 
in  what  capacity  is  by  no  means  clear.    Worley,  Ryder,  and  Tyler  have 
all  given  evidence  as  to  what  took  place  when  the  £9000.  mortgage 
was  sealed,  and  it  is  contended  bv  counsel  for  the  plaintiffs  that  the  (tA<i.Ajlf^^ ^  C4^ 
mortgage  was  merely  an  escrow,  and  never  became  a  perfected  deed.  ^ 

We  are  unable  to  come  to  this  conclusion^    ^It  is.  in  our  opinion,  clear     /v**  rt\}'v^^*^ 
that  the  deed  was  sealed  and  delivered  by  the  company,  acting  through  ^ 

its  directors  and  secretary,  as  a  deed,  i.  e.,  as  a  perfect  instrument;    Oju^JaJ^^ 
and  that  it  was  so  executed  in  order  that  it  might  be  used  a'?  pn  np-  T7    ' 

erative  deed  for  the  purpose  nf  rarrying  nnf  the  rnntemplated  arrange-  ''^^'^a^ 

23  A  portion  of  the  opinion  is  omitted.  *-Xx"3»^  • 


340  DERIVATIVE  TITLES  (Part  2 

ment  by  which  the  several  existing  mortgages  bearing  interest  at  5  per 
cent,  might  be  replaced  by  one  mortgage  bearing  interest  at  41/2  per 
cent.  The  mortgage  was  for  £9000.  and  interest  at  51/4  per  cent.,  re- 
ducible to  4I/2  on  punctual  payment.  On  the  face  of  it.  it  i'^  a.  Hear 
mortgage  for  the  money  and  interest;  the  subsisting  mortgages  are 
not  mentioned  or  referred  to^  The  minute  authorizing  the  seahng  of 
the  deed  says  nothing  about  any  conditional  delivery,  nor  anything 
sliewincr  that  the  document  was  to  operate  as  an  escrow.  Worley, 
Ryder,  and  Tyler  all  agree  that  the  deed  was  executed  in  order  to  en- 
able Wynne  to  get  the  i9000.,  as  it  was  wanted  to  pay  off  the  other 
existing  mortgages  for  which  it  was  to  be  substituted,  and  Worley 
says,  in  order  to  give  the  company  the  right  to  demand  £9000.  from 
the  lenders.  The  real  truth  is  that  neither  Worley,  Ryder,  nor  Tyler 
had  any  distinct  idea  how  the  contemplated  arrangement  was  to  be  car- 
ried out.  They  left  the  whole  matter  to  Wynne,  and  entrusted  him 
to  carrv  it  out  as  best  he  could:  but  that  the  deed  was  executed  as  a 
deed  and  was  not  an  escrow  is.  in  our  opinion,  clear.  This  conclusion 
is  fortified  by  other  evidence.  [This  evidence  his  Lordship  adverted 
to  in  detail.]     Such  is  the  history  of  the  impeached  deed. 

Having  now  stated  the  material  facts  of  the  case,  we  pass  to  the 
law  applicable  to  them.  The  plaintiff  company  seek  to  set  aside  the 
£9000.  mortgage  on  the  following  groundsTnamely— first,  on  the  legal 
ground  that  the  mortgage  never  was  executed  as  a  deed,  but  was  only 
an  escrow.;  secondly,  on  the  equitable  ground  that  the  mortgagees 
never  gave  and  that  the  company  never  got  the  consideration  for 
which  the  mortgage  was  given.  As  regards  the  invalidity  of  the  mort- 
gage as  a  deed,  it  is  urged  that,  although  sealed,  the  mortgage  was 
handed  to  Wynne,  not  as  one  of  the  mortgagees  nor  as  solicitor  to 
the  mortgagees,  but  as  solicitor  to  the  plaintiff  company,  to  be  delivered 
to  the  mortgagees  or  to  be  kept  by  him  as  their  solicitor  only  when  the 
£9000..  or  at  least  some  of  it,  reached  the  plaintiff  company  or  was 
applied  in  paying  oif  the  other  mortgages  which  the  company  had 
arranged  to  pay  ofif.  Kekejagch,  T..  decided jliis  poinf  agamst  the  plain- 
tiff Qompany.  We  take  the  same  view.  We  are  not  prepared  to  go 
so  far  as  to  say  that,  as  Wynne  was  himself  one  of  the  mortgagees 
and  a  party  to  the  deed,  it  could  not  in  point  of  law  be  an  escrow 
in  his  hands.  Counsel  for  the  defendants  contended  that  the  mere 
fact  that  Wynne  was  himselT  one  oTthe  rnoFfgagees  was  fatal  to  the 
deed  being  an  escrow.  They  contended  that  to  be  an  escrow  the  deed 
must  be  delivered  to  some  person  not  a  party  taking  under  it ;  in  short, 
to  a  stranger.  In  support  of  this  contention  reliance  was  placed  on 
Co.  Litt.  36  a;    Sheppard's  Touchstone  (7th  Ed.)  pp.  58,  59;  2*    and 


24^Xrhe  delivery  of  a  deed  as  an  escrow  is  said  to  be  where  one  cloth  make 
seaTa  aeeci,  and  U{jllV(^i*'  It  unto  a  stranger  until  certain  conditions  be  per- 
t'grmea,  'andThen  to  be  diellVgl'ed  to  bim  to  whom  the  deed  is  made,  to  take  ef- 
fect as 'his  deed.  And  so  a  man  may  deliver  a  deed,  and  such  a  delivery  is 
good.     But  in  this  case  two  cautions  must  be  heeded :    1.  That  the  form  of 


Ch.  2)  EXECUTION  OF   DEEDS  341 

Whyddon's  Case,  Cro.  Eliz.  520.  No  doubt  the  language  used  in  the 
authorities  referred  to  and  reproduced  in  other  works  on  real  prop- 
erty and  conveyancing  is  in  favour  of  this  contention.  But  the  lan- 
guage is  very  general,  and  we  are  not  at  all  satisfied  that  the  law  is  so 
rigid  as  to  compel  the  Court  to  decide  that  where  there  are  several 
grantees  and  one  of  them  is  als^  solicitor  of  the  grantor  and  of  the 
other  grantees,  and  the  deed  is  delivered  to  him,  evidence  is  not  ad- 
missible to  shew  the  character  in  which  and  the  terms  upon  which  the 
deed  was  so  delivered.  To  exclude  such  evidence  appears  to  us  un- 
reasonable ;  and  we  do  not  think  we  are  compelled  by  authority  to 
exclude  it.  We  hold  such  evidence  to  be  adniis<;ih1p,  ?\nd  jn  cjp  doing 
we  believe  we  are  acting  in  accordance  with  modern  authorities,  be- 
ginning with  Murray  v.  Earl  of  Stair,  2  B.  &  C.  82,  and  ending  with 
Watkins  v.  Nash,  L,,  R.  20  Eq.  262.  Upon  the  evidence,  however,  to 
which  we  have  already  referred,  we  come  to  the  conclusion  that  the 
mortgage  was  executed  as  a  complete  deed,  and  that  it  was  given  as 
such  to  Wynne  in  order  to  enable  him  to  carry  nut  the  arrangements 
to  which  we  have  before  alluded ;  jjid  to  carry  them  out  as  he  thought 
proper.^"*     *     *     * 

y     Jr 
words  used  in  the  delivery  of  a  deed  in  this  manner  be  apt  and  proper.     2.  I^at 
tlie  deed  be  deliverea  to  one  that  is  a  stranger  to  it.  and  not  to  the  party  him- 
self to  whom  it  is  made:    '    *    ^    So  it  must  be  delivered  to  a  stranger;   for  If 
I  seal  my  deed  and  deliver  it  to  the  party  himself  to  whom  it  is  -made  as  an       _        . 
escrow  upon  certain  conditions,  &e.,  in  this  case,  let  the  form  of  the  words  be    ^  cCcZ^^** 
whai  it  will,  the  delivery  is  absolute,  and  the  deed  shall  take  effect  as  his  deed  «^'  '--y 

presenny,  and  the  luirty  is  not  bound  to  perform  the  conditions;  for,  in  tradi-  ^  4''X^«--C*< 
tionibus  cliartarum,  non  quod  dictum,  sed  quod  factum  est,  Inspicitur.  But  ^^,*.c..-s„#i^ 
in  the  first  cases  before,  where  the  deed  is  delivered  to  a  stranger,  and  apt 
words  are  used  in  the  delivery  thereof,  it  is  of  no  more  force,  until  the  con- 
ditions be  performed,  than  if  I  had  made  it,  and  laid,  it  by  me,  and  not  delivered 
it  at  all ;  and  therefore  in  that  case,  albeit  the  party  get  it  into  his  hands 
before  the  conditions  be  performed,  yet  he  can  make  no  use  of  it  at  all,  neither 
will  it  do  him  any  good.  B^t  when  the  conditions  m-p  nprfm-pied.  and  the  deed 
Is  delivered  over,  then  the  deed  shall  take  as  uiueh  eff^ft  'T'^  '^  ^*"  Wfff  delivered  -^ 

iinmediately  to  tlie  party  to  whom  it  is  made,  .ind  no  act  of  God  or  u-,an  can 
Hinder  or  prevent  this  effect  then,  if  the  nartv  thnt  dntli  mnkp  it  be  not  atlEe 
time  of  iii.niving  tliereoi:'  disabled  to  make  it.  He  therefore,  that  is  trusted  with 
the  keeping  and  delivering  of  such  a  writing,  ought  not  to  deliver  it  before  the 
conditions  be  performed ;  and  when  the  conditions  be  performed,  he  ought  not 
to  keep  it,  but  to  deliver  it  to  the  party.  For  it  may  be  made  a  question,  wheth- 
er the  deed  be  perfect,  before  he  hath  delivered  it  over  to  the  party  accord- 
ing to  the  authority  given  him.  gowbeit  it  seems  the  delivery  is  good.  forJt 
is  said  in  this  case,  that  if  either  ofTlie  narties  to  the  deed  die  heforp  thp  fion- 
ditions  be  performed,  and  the  conditions  be  after  nfirformed.  that  thp  d^^ri  7s 
good ;  for  there  was  traditio  inchoata  in  the  lifetime  of  the  parties ;  et  postea 
consummata  existens  by  the  performance  of  the  conditions,  it  tak^tb  i^g  pffpr'i- 
by  the  first  deliver.y.  without  any  new  or  second  delivery:  and  thf^  sp<^nri  rip- 
livery  is  but  the  execution  and  consummation  of  the  first  delivery."  Shep. 
Touch.  5S,  59.  '  ' 

2  5  But  see  Price  v.  Pittsburgh,  Ft.  W.  &  C.  R.  Co.,  .34  111.  13  (1864),  where  a 
d^ed  was  left  with  the  solicitor  of  a  corporation,  the  grantee,  to  be  held  ^y  him 
until  the  performance  of  a  conditioiL 


342  DERIVATIVE  TITLES  (Part  2 


WIPFLER  V.  WIPFLER. 

(Supreme  Court  of  Michigan,  1008.     353  :\Iich.  IS,  IIG  N.  W.  544,  IG  L.  II.  A. 

[X.  S.J  941.) 

MoxTCOMERY,  J.  Complainant  filed  a  bill  for  divorce,  also  pra^nng 
to  have  set  aside  a  deed  of  certain  lands  made  by  complainant  running 
to  the  defendant,  and  to  compel  the  conveyance  by  defendant  to  com- 
plainant of  certain  other  lands,  title  to  which  was  taken  in  defendant's 
name,  the  consideration  price  having  been  paid  by  complainant.  The 
complainant  prevailed  on  all  points  in  the  court  below  and  defend- 
ant appealed.  The  p-ronnd  for  the  divorce  alle,i]:ed  was  extreme  cruejty. 
The  circuit  judge,  who  saw  the  witnesses  and  noted  their  api)earance 
upon  the  stand,  w^as  of  the  opinion  that  the  case  of  extreme  cruelty 
was  made  out.  We  are  not  disposed,  upon  the  record  made,  to  disturb 
the  circuit  judge's  finding  upon  this  question. 

Upon  the  question  of  the  right  to  set  aside  the  deed  execui£d-hy 
complainant  and  placed  in  defendants  hands,  we  encounter  what.jye 
deem  a  legal  obstacle  to  granting  the  relief  prayed.  The  equities  of 
the  case  are  undoubtedly  very  strongly  with  complainant,  and  if  the 
rules  of  law  would  admit,  we  should  unhesitatingly  grant  the  relief 
prayed.  The  property  involved  represents  substantiallv  all  the  earn- 
ings of  the  complainant  for  a  lifetime,  and  the  insistance  by  the  defend- 
ant  upon  her  legal  rights  which  will  result  in  turning  complainant  out 
almost  penniless,  is  most  unconscionable  and  inequitable,..  We  have 
struggled  to  find  authority  for  relieving  complainant  in  the  case,  but  up- 
on a  full  consideration  and  a  re-examination  of  the  question  determined 
by  this  court  in  Dyer  v.  Skadan,  128  xMich.  348,  87  N.  W.  211,  92  Am. 
St.  Rep.  461,  we  are  unable  to  find  such  authority. 

Complainant's  testimony  is  that  he  prepared,  ^signsd,.  and  acknowl- 
edged the  deeds  in  question,  and  retained  them  in  his  possession  for 
several  years,  but  tliat  Tn  the  month  of  August,  1890,  when  about 
to  take  a  raihvay  trip  to  the  G.  A.  R.  encampment,  which  he  deemed 
hazardous  on  account  of  a  strike  of  the  employees  of  the  road  he 
would  travel  over,  he,  before  leaving  home,  handed  the  deeds  to  the 
defendant  wMth  instructions  that  if  anything  of  a  fatal  nature  should 
be^fall  him,  she  should  have  the  deeds  recorded;  that  he  returned_J n 
safety,  and  several  years  thereafter  found  that  the  defendant  had 
caused  the  deeds  to  _be  recorded  during  his  absence  on  this  trip.  The 
defendant  denies  that  there  was  any  condition  annexed  to  the  delivery 
of  the  deeds  to  her,  but  asserts  that  complainant  handed  her  the  deeds 
teJling  her  to  record  them,  and  instructing  her  in  what  office  to  have 
them  recorded.  But  assuming  complainant's  version  to  be  correct,  the 
transaction  constituted  a  delivery  of  the  deeds  to  the  grantee  without 
any  express  reservation  of  the  right  to  recall  them,  and  with  intent 
that  in  a  certain  contingency  they  should  be  efiective.  without  any  fur- 
ther act  on  the  part  of  the  complainant. 


Ch.  2)  EXECUTION   OF   DEEDS  343 

The  case  of  Dyer  v.  Skadan  reviews  the  authorities  and  follows 
the  rule  laid  down  by  this  court  in  Dawson  v.  Hall,  2  Mich.  390,  that 
a^delivery  of  a  deed  by  a  grantor  to  a  granteeMn  escrow  or^upon  con- 
ditionMs  effectual  to  pass  title  presently.  This  question  has  arisen  and 
is  considered  and  discussed  in  a  vast  number  of  cases.  Many  cases 
may  be  found  in  which  the  manual  custody  of  a  deed  had  been  entrust- 
ed to  the  grantee  temporarily  and  evidence  was  admitted  to  show  that 
no  delivery  was  intended.  Uut  these  cases  when  examined  and  ana- 
lyzed are  found  to  be,  we  think,  cases  in  which  there  was  no  intent 
that  the  deed  should  take  effect  ultimately  without  any  further  act  on 
the  grantor's  part  if  the  condition  upon  which  it  was  delivered  should 
be  performed.  See  a  discussion  of  this  subject  in  Gilbert  v.  Insur- 
ance Co.,  23  Wend.  (N.  Y.)  43,  35  Arh.  Dec.  543,  in  which  case  it 
was  held  that  leaving  the  deed  in  the  hands  of  the  grantee  to  be  by 
him  transmitted  to  a  third  person  to  hold  in  escrow  until  the  hap- 
pening of  a  certain  event  is  not  a  delivery  to  the  grantee  so  as  to  vest 
title  in  him.  But  in  that  case  it  is  manifest  that  nothing  but  the  bare 
possession  of  the  deed  was  vested  in  the  grantee,  and  it  was  not  to  be 
retained  except  by  a  breach  of  faith.  The  deed  could  not  presently 
lake  effect  in  the  hands  of  the  grantee,  nor  could  it  take  effect  without 
an  intervening  act  by  the  grantor  or  his  agent.  In  the  present  case. 
tio  act  of  the  grantor  was  required  which  was  not  performed.^  It  Js 
true  the  condition  which  it  is  attempted  to  annex  to  the  delivery  has 
not  been  tulhlled,  but  had  the  death  occurred,  no  other  act  of  the 
grantor  was  essential  to  the  passing  ot  title!  The  case  of  Gilbert  v. 
Insurance  Co.,  it  should  be  stated,  was  later  distinguished  and  its  doc- 
trine questioned  by  so  able  a  jurist  as  Judge  Selden  in  Braman  v. 
Bingham,  26  N.  Y.  491,  in  which  it  was  sought  to  avoid  delivery  of  a 
deed  on  the  ground  that  it  was  deposited  with  the  granted  with  in- 
structions to  leave  it  with  one  of  the  clerks  of  the  register's  office, 
and  it  was  contended  that  these  facts  showed  that  there  was  no  de- 
livery with  intent  that  title  should  pass.  It  was  held,  however,  that 
it  was  immaterial  whether  these  facts  were  properly  pleaded ;  that 
if  the  answer,  in  addition  to  what  it  contained,  had  embraced  these  facts, 
it  would  not,  in  the  opinion  of  the  court,  have  presented  a  defense. 
Referring  to  Gilbert  v.  Insurance  Co.,  it  was  said  : 

"In  that  case,  the  grantee  had  deposited  the  deed  with  the  third  per- 
son in  pursuance  of  the  arrangement,  the  condition  had  not  been  per- 
formed, and  the  grantee  made  no  claim  under  the  deed.  The  case 
presented  merely  the  question,  whether  the  grantor  still  retained  an 
insurable  interest  in  the  premises  described  in  the  deed,  the  nominal 
grantee  testifying  to  the  terms  in  which  the  deed  was  delivered  to  him. 
Limited  to  its  peculiar  circumstances,  no  fault  can  be  found  with  the 
decision ;  but  if  the  grantee  had  retained. the  deed,  claiming  that  its  de- 
livery to  him  was  absolute,  and  in  a  contest  between  him  and  the 
grantor  parol  proof  of  a  conditional  delivery  had  been  offered,  I  think 
the  result  would  have  been  different.     If  I  am  wrong  in  this  conclu- 


344 


DERIVATIVE  TITLES 


(Part  2 


d 


sion,  the  case  discloses  an  avenue  for  the  overthrow  of  titles,  by  parol 
proof,  which  was  supposed  to  be  closed  by  the  rule  to  which  it  would 
seem  to  form  an  exception.  *  *  *  If  a  delivery  to  the  grantee 
can  be  made  subject  to  one  parol  condition,  I  see  no  ground  of  prin- 
ciple which  can  exclude  any  parol  condition.  The  deed  having  been 
delivered  to  the  grantee.  I  think  the  parol  evidence  that  tb^  Hpliypr.^ 
was  conditional  was  properlv  excluded." 
'  See,  also,  Foley  v.  Cowgill,  5  Blackf .  (Ind.)  18,  32  Am.  Dec.  49; 
Worrall  v.  Munn,  5  N.  Y.  229,  55  Am.  Dec.  330. 

But  if  we  assume  it  to  be  correct  to  hold  that  a  deed  may  be  deliv- 
ered to  a  grantee  as  a  mere  agent  or  bailee  of  the  grantor  to  transmit 
such  deed  to  a  third  person  to  hold  in  escrow,  it  does  not  aid  the  com- 
plainant in  this  case.  Nor  do  we  know  of  any  authority  which  goes 
to  the  extent  of  holding  that  a  deed  dejivered  to  a  grantee  with  an 
intention  on  the  part  of  the  grantor  that  it  shall  be  subject  to  a  future 
condition,  but  with  no  express  provision  for  recall  by  the  grantor  and 

i requiring  for  its  vahdity  no  additional  act  on  the  part  of  the  grantor 
or  any  third  person,  can  be  defeated  by  parol  proof  of  such  condi- 
4-i/-\-p   26         ^         ^         5f; 

The  decree  must  be  modified  as  indicated  by  this  opinion.  But  the 
want  of  equity  and  good  conscience  in  defendant's  attitude  in  this  case  is 
so  marked  that  we  are  disposed  to  exercise  our  discretion  and  with- 
hold any  award  of  costs.^^ 


LEE  V.  RICHMOND. 

(Supreme  Court  of  Iowa,  1894.    90  Iowa,  695,  57  N.  W.  613.) 

Robinson,  J.  The  defendants.  William  Richmond  and  George  W, 
Fulton,  for  some  years  carried  on  a  commercial  business  at  Council 
Bluffs  under  the  name  of  the  Boston  Tea  Company..  James  T.  Lee,  a 
son  of  the  plaintiff,  was  employed  by  them  as  clerk  for  about  three 
years.  In  July,  1888,  and  while  he  was  so  employed,  the  defendants 
caused  him  to  be  arrested  on  a  preliminary  information  which  charged 
him  with  the  crime ^F  embezzlement.  While  he  was  under  arrest, 
and  before  the  examination  was  held,  he  had  an  interview  with  Rich- 
mond, in  which  he  admitted  that  he  was  guilty  of  the  offense  charged, 
but  expressed  a  Hp'^irp  tn  5;p.ttl^  the  matter,  and .  agreed  lo""teTegraph 

.    y^2^/The  balance  of  the  opinion  reviewing  many  cases  is  omitted. 
C-'-^ee  accord,  Fisher  v.  Fisher,  23  Cal.  App.  310,  137  Pac.  1094  (1913),  under  a 
statute. 

27  Cf.  Alabama  Coal  &  Coke  Co.  v.  Gulf  Coal  &  Coke  Co.,  165  Ala.  304.  51 
•     South.  570  (1910),  where  A.  made  a  deed  to  B.  and  handed  the  deed  to  X.,  a 
land  purchasing  agent  of  B.,  to  be  held,  however,  in  escrow  until  the  payment 
of  the  purchase  price  by  B.     Held  no  delivery  to  B. 

See  Blewitt  v.  Boorum,  142  N.  Y.  357,  37  N.  E.  119,  40  Am.  St.  Rep.  600  (1S94), 
where  the  court  limits  the  doctrine  of  the  principal  case  to  instruments  affect- 
ing realty  and  instruments  requiring  a  seal  for  validity,  intimating,  however, 
that  the  latter  should  not  come  within  the  rule. 


Ch.  2)  EXECUTION  OF  DEEDS  345 

tq  hig  father,  who  resided  at  Keokuk,  to  come  to  Council  Bluffs.  On 
the  next  day,  Saturday,  July  14,  he  learned  that  his  father  could  not 
come,  and  informed  Richmond  of  the  fact.  On  Sunday,  the  defend- 
a^jts  visited  him  at  his  home,  and  spent  several  hoiirs  there.  On  the 
same  day,  Richmond,  James  T.  Lee,  and  his  wife  started  for  the  home 
of  the  plaintiff,  where  they  arrived  Monday.  An  interview  was  there 
had,  at  which  the  plaintiff  and  his  wife,  the  son  and  his  wife,  and  Rich- 
nlond  were  present  during  all  or  a  part  of  the  time.  It  resulted  in  the 
execution  by  the  plaintiff  and  his  wife  to  Richmond  of  a  deed  for  three 
lots  in  the  town  ot  Atlantic  for  the  specified  consideration  of  two  thou- 
sand dollars.     The  deed  was  given  to  Richmond,  and  was  record_ed  *     , 

in  the  office  of  the  recorder  of  Cass  county.     The  plaintiff  asks  that  f^^^^-*^^"'^'^ 
the  deed  be  canceled,  and  for  general  equitable  relief.     The  district  [J       ^.^tJfZ^ 
court  decreed  the  deed  to  be  void,  and  that  the  title  to  the  lots  was 
vested  in  the  plaintiff. 

The  plaintiff'  alleges  that  the  deed  was  executed  in  consequence  of 
the  representations  of  Richmond,  for  himself  and  Fulton,  that  James 
T.  Lee  had  embezzled  a  large  sum  of  money;  and  they  had  filed  an 
information  against  him,  in  which  he  was  charged  with  the  embezzle- 
rnent  of  money  and  goods  to  the  value  of  five  thousand  dollars ;  that 
the  embezzlement  had  been  confessed  by  him ;  that  the  defendants 
were  his  friends,  and  that  for  the  sum  of  three  thousand  (;lnllar.s  they 
would  Hi.smi?^^  the  information,  and  restore  him  to  his  employment. 
and  he  would  have  no  further  trouble;  that,  if  the  sum  of  thyge 
thousand  dollars  was  not  paid  at  once,  the  prosecution  would  be  carried 
on,  and  he  would  be  sent  to  the  penitentiary.  The  plaintiff  further 
claims  that  at  that  time  he  and  his  wife,  who  is  the  mother  of  James 
T.  Lee,  were  old  and  feeble;  that  he  was  sick;  that  both  were  much 
disturbed  and  frightened  by  what  was  said  to  them,  and  not  knowing 
the  facts,  and  having  no  knowledge  of  such  matters,  they  believed  what 
Richmond  said  to  them ;  that,  when  the  deed  was  executed,  Richmonil 
agreed  to  submit  it  to  Fulton,  and,  if  it  was  not  satisfactory  to  him. 
to  return  it  to  plaintiff^  but  that,  if  it  was  satisfactory,  the  rriminni 
prosecution  of  his  son  would  be  dropped  and  eruled.  Some  of  these 
claims  are  denied  by  the  defendants,  but  the  preponderance  of  the  evi- 
dence shows  the  following  facts :  Until  James  T.  Lee  and  wife  and 
Richmond  arrived  at  the  house  of  the  plaintiff,  he  did  not  know  of  the 
charges  against  his  son.  He  was  then  about  seventy  years  of  age,  had 
been  in  poor  health  for  several  years,  and  was  confined  to  the  house. 
He  was  subject  to  attacks  of  nervousness,  and  had  been  suffering  from 
one  for  several  days.  Richmond  told  him  that  the  amount  of  the  em- 
bezzlerrjent  was  siy  thousand  dollars,  but  the  defendants  would  drop 
the  prosecution  for  three  thon'^^^nH  dollars:  that  the  preliminary  hear- 
ing was  set  for  the  next  day,  and  would  be  prosecuted,  unless  a  settle- 
ment was  effected.  The  son  was  present,  but  did  not  deny  the  charge 
of  embezzlement  which  Richmond  made-  The  father  and  mother  were 
much  frightened,  and  desiring  to  protect  their  son,  and  avoid  the  scan- 


346  DERIVATIVE  TITLES  (Part  2 

dal  of  a  criminal  prosecution,  finally  consented  to  give  the  deed  in  ques- 
tion, if  it  would  end  the  prosecution,  and,  with  notes  of  the  defend- 
ants  to  the  amount  of  about  nine  hundred  dollars,  which  the  son  held 
and  proposed  to  surrender,  would  effect  a  complete  settlement  of  the 
matter  in  controversy.  The  deed  was  delivered  under  an  agreement 
to  that  effect,  and  on  condition  that,  if  it  was  not  satisfactory  to  Ful- 
ton, it  was  to  be  returned  to  the  plaintiff.  The  notes  held  by  the  son 
were  surrendered  to  the  defendants,  but  the  prosecution  of  the_son_ 
was  not  stopped,  although  after  the  case  reached  the  district  court, 
and  after  an  indictment  h;^d_bee"  returned,  it  was  dismissed  on  motion 
of  the  county  .attorney  for  want  of  sufficient  evidence  to  convict.  The 
deed  was  retained  by  the  defendants,  but  they  insisted  that  the  plain- 
tiff should  give  his  promissory  notes  for  the  sum  of  one  thousand 
dollars,  which  were  sent  to  him  repeatedly  for  his  signature. 

It  is  said  that,  if  the  claims  of  the  plaintiff  be.wpll  fnimrjed.  he  con- 
veyed his  propertv  for  the  purpose  of  compromising  a  criminal  piiDS- 
ecution  and  that,  as  that  object  was  illegal,  the  law  will  leave  all  parties 
to  tile  transaction  where  it  finds  then-L  We  should  hesitate  long  before 
refusing  tho  plaintiff  relief  on  that  ground,  in  view  of  the  weakness  of 
his  body  and  mind,  the  threats  made,  and  the  fear  he  was  under 
when  the  deed  was  given.  Meech  v.  Lee,  82  Mich,  274,  46  N.  W.  397. 
But  we  prefer  to  place  our  conclusion  upon  the  ground  that  the  condi- 
tion on  which  the  deed  was  given  to  Richmond  was  never  complied 
with,  and  that  the  deed  was  not  in  law  delivered,  and,  therefore,  has 
not  taken  effect  as  a  conveyance.  We  refer  to  the  condition  that  the 
(Jeed  and  the  notes  surrendered  by  the  son  should  be  received  in  full 
settlement  of  the  claims  made  against  the  son  by  the  defendants.  Con- 
ceding that  some  of  the  provisions  of  the  agreement  were  illegal,  yet 
the  deed  was  not  to  be  regarded  as  delivered,  unless  the  settlement 
attempted  was  approved  by  Fulton,  and,  as  it  was  not  approved  bv 
him,  there  was  never,  in  law,  any  delivery,  and  the  deed  is  without 
effect.  Steel  v.  Miller.  40  Iowa.  406:  Berkshire  v.  Peterson.  83  Iowa, 
198.  48  N.  W.  1035;  Head  v.. Thompson,  17  Iowa,  267,  42  N.  W.  188; 
Deere  v.  Nelson,  73  Iowa,  187,  34  N.  W.  809.  JThe JacUhaLsome  j)or- 
tions  of  tjie  agreei;nent  were  illegal  would  not  operate  to  annul  the  con- 
ditions and  make  the  delivery  complete.  §ince  the  deed  ysi7{%  never 
delivered,  nothing  can  be  claimed  under  it.  The  decree  of  the  dis- 
trict  court  is  in  harmony  with  our  conclusions,  and  is  affirmed.-^ 

28  See.  also.  Ilaviland  v.  Haviland,  130  Iowa,  611,  105  N.  W.  354,  5  L.  R.  A. 
(N.  S.)  281  (1905). 


Ch.2) 


fk    f^  EXECUTION   OF   DEEDS  r\  "^         fjtj     347 

343,  65  xL.  Dec.  SU.)  ^r~--->. 


A     'j  EXECUTION    OF    DEEDS  jr\ 

\  0  *  EVERTS  V.  AGNES        '^' 


(Supreme  Court  of  Wisconsin,  1S55.    4  Wis.  343, 

Everts  made  a  deed  of  the  premises  in  controversy  and  deposited 
same  with  Zettler  witli  instructions  to  deHver  it  to  Agnes,  the  grantee, 
upon  Agnes  making  certain  notes  and  mortgages.  Without  having 
performed  the  condition  Agnes  secured  possession  of  the  deed  aiiH 
after  having  same  recorded  conveyed  the  premises  by  deed  to  Swift. 
The  action  was  by  Everts  against  Agnes  and  Swift  to  set  aside  and 
cancel  these  conveyances.  Swift  claimed  to  have  taken  as  a  bona  fide 
purchaser  for  value.  The  trial  court  dismissed  the  bill  as  to  Swift, 
and  required  Agnes  specifically  to  perform  his  part  of  the  contract 
with  Everts  or  show  cause,  etc.     Complainant  appealed.-* 

By  the  Court,  Smith,  J.  It  is  hardly  possible  to  dispose  of  this  case 
without  recapitulating  some,  and  perhaps  most  of  the  material  allega- 
tions and  facts  involved  therein;  yet  with  the  statement  of  the  case 
which  will  precede  the  conclusions  to  which  we  have  here  arrived,  and 
which  will  fully  appear  in  the  report  of  the  case,  it  is  only  necessary  to 
recur  to  them  incidentally  as  the  discussion  of  the  principles  involved, 
and  of  the  points  argued,  shall  seem  to  require. 

On  the  31st  day  of  May,  A.  D.  1851,  a  written  memorandum,  very 
informal  and  incomplete,  was  entered  into  between  the  complainant 
Everts,  and  the  defendant  Every  Agnes,  for  the  sale  of  the  premises 
described  in  the  complainant's  bill  of  complaint.  Whether  or  not  that 
written  memorandum  would  be  sufficiently  definite  and  certain  to  au- 
thorize or  enable  a  court  of  equity  to  decree  a  specific  performance 
thereof  is  not  absolutely  necessary  to  inquire.  It  is,  however,  worthy 
of  remark,  that  from  that  memorandum  alone,  it  would  be  difficult  to 
settle  definitely  the  rights  of  the  parties  therejo.  It  is  sufficient  for  the 
purposes  of  this  case  to  say,  ^jiat  it  conveyed  no  title  by  FJ^verl;s,  nor 
djd  Agnes  obtain  any  title  thereby ;  at  most  an  equitable  interest  in  the 
land,  upon  the  performance  of  thf  rnnfHtinn<;  or  stipulations  therein 
contained,  on  his  part  to  be  performed,  and  that  he  had,  and  could  have 
had,  no  legal  rights  conveyed  by  Everts  in  conformity  with  the  memo- 
randum or  otherwise,  whatever  his  equitable  rights  may  have  been.  It 
is  apparent  that  the  defendant  Swift  did  not  purchase  any  equitable 
r^ht  or  title  assuch,  which  Agnes  may  have  had  by  virtue  ot  the  con- 
tract;  but  whatever  he  did  purchase,  was  such  interest,  title  or  estate 
as  Agnes  had  in  the  premises,  by  virtue  of  his  record  or  paper  title 
under  the  deed  of  Everts  to  Agnes,  made  and  recorded  as  set  forth  in 
tne  pleadings^ 

It  is  not  necessary,  therefore,  to  inquire  what  would  have  been  the 
equitable  rights  of  the  defendant  Swift,  had  the  interest  of  Agnes  de- 
rived by  virtue  of  tlie  written  memorandum  or  contract  before  men- 

29  Tlds  statement  is  substituted  for  the  one  in  the  report. 


348  DERIVATIVE  TITLES  (Part  2 

tioned,  been  assigned  to  him,  and  had  he  been  the  purchaser  under  the 
same,  and  had  reHed  thereon  in  his  answer.  But  he,  Swift,  derives 
his  title  solely  from  the  deed  of  A!S!"nes  to  him,  conveyed  through  the 
deed  jjfJEverts  to  Agnes,  without  anv  knowledge  or  considerationj)f. 
or  reliance  upon  the  written  contract  or  memorandum  before  jnen- 
tiohed.  and  bases  no  claim  thereon.  So  far,  therefore,  as  Swift 
is  concerned,  he  stands  precisely  in  the  same  condition  as  he 
Avould  have  done,  had  no  written  contract  ever  existed  between  tb& 
parties.  Everts  and  Agnqs.  It  is  tAie  that  S'wift  admits  in  his  answer 
the  said  agreement,  and  avers  that  in  pursuance  thereof.  Everts  execut- 
ed a  deed  conveying  the  title,  but  he  sets  up  no  claim  under  this  alleged 
deed,  nor  any  equitable  considerations  growing  out  of  the  original  con- 
tract. He  claims  bv  virtue  of  his  deed  from  Apies  and  the  deed  of 
Everts  to  Agnes.  On  them,  and  them  alone  does  he  base  his  rightsjjid 
interests,  and  by  them  are  thev  to^  be  adjudicated. 

For  the  purposes  of  this  case,  it  is  wholly  immaterial  whether  the 
defendant  Agnes  was  in  a  position  entitling  him  to  demand  a  convey- 
ance from  Everts  or  not.  Were  we  to  express  an  opinion  upon  that 
subject,  perhaps  it  would  not  go  far  to  aid  either  of  the  defendants. 
The  conveyances  under  which  Agnes  pretends  to  claim  are  voluntary, 
in  contradistinction  to  those  decreed  to  be  executed  upon  a  bill  for 
specific  performance.  The  deed  or  deeds,  therefore,  executed  by 
Everts  to  Agnes,  must  be  considered  precisely  the  same  as  though  no 
previous  contract  or  memorandum  had  existed,  so  far  as  their  operative 
effect  upon  the  defendant  Swift  is  concerned. 

We  regard  the  making  and  delivery  of  the  two  deeds  as  but  one  con- 
tinuous act,  having  its  consummation  in  the  deposit  of  the  last  deed 
with  Zettler.  We-do,  not  think.,  as  is  claimed  by  the  counsel  for  tlie 
defendant,  that  any  title  passed  by  the  first  deed.  It  was  rather  an 
attempt  to  convey  the  premises,  which  was  abandoned  for  anotEir, 
and  as  was  supposed,  better  and  more  perfect  fomi.  The  rights  of 
the  parties,  whatever  they  are,  must  therefore  depend  upon  the  efi:'ect 
of  the  last  deed,  and  their  respective  relations  to  it. 

We  think JLlxere  can  be  no  doubt  that  the  fraudulent  means  used 
by  Agnes  to  get  possession  of  the  deed  from  Zettler,  the  depositary. 
are  such  as. .effectually  preclude  him  from  deriving  any  benefit  from 
it__Th^.  testimony  .on, .this. -branch  of., jLbe  case  is  satisfactory.  The 
deed  was  left  with  Zettler  as  an  escrow, ..w.ith ...instructions  not  to 
be  delivered  until  certain  securities  should  be  given  by  Agnes.  Until 
the  performance  of  the  condition,  it  was,  and  must  remain,  a  mere 
scroll  in  writing,  of  no  more  efficacy  than  any  other  written  scroll ;  b^t 
when,  upon  the  performance  of  the  condition,  it  is  delivered  to  the 
grantee  or  his  agent,  it  then  becomes  a  deed  to  all  intents  and  purposes, 
and  the  title  passes  irom  the  date  of  the  delivery!  The  deli  very  to  be 
valid,  must  be  with  tlie  assent  ot  the  grantor.  These  are  familiar  prin- 
ciples and  do  not  require  the  citation  of  authorities  to  sustain  them. 
If  the  g'-^nlf^  nKfgjp  p-^gsession  of  the  escrow  without  performance_of 


Ch.  2)  EXECUTION  OF  DEEDS  349" 

the  condition,  he  obtains  no  title  thereby,  because  there  has  been  no 
delivery  with  the  assent  of  the  grantor^  which  assent  is  dependent 
upon  compliance  with  the  condition,.  The  assent  of  the  latter  is  with- 
held until  the  condition  is  performed.  The  obtaining  of  it  by  fraud, 
larceny,  or  any  means  short  of  performance  of  the  condition,  is  against 
the  assent  of  the  grantor;  and  as  this  assent  is  essential  to  delivery, 
ajid  a  delivery  is  essential  to  the  validity  of  the  deed,  it  is  difficult  to 
perceive  how  Agnes  ever  obtained  any  title  whatever  to  the  premises, 
and  of  course,  equally  difficult  to  perceive  how  he  could  convey  any, 
by  any  conveyance  which  he  might  execute  to  another.  The  recording 
of  an  escrow  does  not  make  it  a  deed.  Suppose  Zettler  had  procured 
the  deed  to  be  recorded,  and  Swift  had  purchased  of  Agnes  on  the 
faith  of  the  record  title,  without  any  delivery  of  the  deed  to  Agnes,  will 
it  be  claimed  that  Swift  in  such  case  would  have  obtained  title?  How 
is  the  case  made  better  by  the  wrongful  possession  of  the  escrow  by 
Agnes,  obtained  without  the  consent  of  Everts,  and  hence  without  any 
delivery  to  him?  It  is  true,  all  this  might  be  done  and  Swift,  the  pur- 
chaser, be  quite  innocent  of  any  wrong.  It  is  also  true,  that  either 
Everts  or  Swift  must  sufifer  by  the  fraud  of  Agnes,  the  latter  being 
unable  to  make  reparation.  But  which  has  the  prior  of  superior 
equity?  Everts  asks  that  he  shall  not  be  divested  of  his  estate  witji- 
out  his  consent.  Swift  asks  not  only  that  Eyerts  mnv  he  thus  divested. 
but  that  he,  himself,  may  be  invc^tprl  with  it-  It  is  quite  apparent  that 
the  superior  equity  is  with  him  who  had  the  original  title,  with  which 
he  has  never  voluntarily  parted.  Swift  has  his  remedy  upon  the  cove- 
nants  of  his  deed  from  Agnes.  But  were  the  equities  equally  balanced, 
the  legal  title  must  prevail.  That  the  leoal  title  never  passed  from 
Everts,  w^e  think  is  clear,  both  from  reason  and  authority.  2  Blk.  Com. 
— — ;  4  Kent,  Comm.  459;  5  Greenlfs.  Cruise,  Title,  Deed,  45,  46; 
Jackson  v.  Catlin,  2  Johns.  (N.  Y.)  248,  3  Am.  Dec.  415 ;  Same  v.  Mc- 
Kee,  8  Johns.  (N.  Y.)  429,  431;  Frost  v.  Beekman,  1  Johns.  Ch.  (N. 
Y.)  296 ;  Jackson  v.  Rowland,  6  Wend.  (N.  Y.)  666,  22  Am.  Dec.  557 ; 
Carr  v.  Hoxie,  5  Mason,  60,  Fed.  Cas.  No.  2,438 ;  Jackson  v.  Sheldon, 
22  Me.  569;  Robins  v.  Bellas,  2  Watts  (Pa.)  359;  1  Story's  Eq.  Juris. 
par.  75,  76 ;  Somes  v.  Brewer,  2  Pick.  (Mass.)  184,  13  Am.  Dec.  406 ; 
Worcester  v.  Eaton,  11  Mass.  375. 

But  it  is  contended  that  Swift  j'l  pntitlpH  tr>  protertinn  as  a  bona 
fide  purchaser  without  notice.  This  has  been  a  point  of  some  difficulty. 
We  have  not  been  rei'erred  to,  nor  have  we  been  able  to  find  an  author- 
ity directly  in  point.  We  are  aware  that  courts  of  equity  go  to  great 
lengths  to  protect  a  bona  fide  purchaser  for  a  valuable  consideration 
without  notice.  The  plaintiff  cannot  set  up  the  fraud  of  his  grantee  in 
procuring  a  conveyance,  to  defeat  the  title  of  a  subsequent  bona  fide 
purchaser.  But  such,  and  all  the  cases  referred  to,  differ  from  the 
case  at  bar,  in  the  important  fact  that  in  all  of  them  the  conveyance 
was  perfected  by  the  voluntary  act,  and  with  the  assent  of  the  grantor. 
He  made  the  sale.    He  executed  and  delivered  the  deed,  or  caused  the 


^- 


350  DERIVATIVE  TITLES  (Part  2 

same  to  be  done.  All  these  acts  were  perfectly  voluntary  on  his  part, 
and  no  matter  what  fraudulent  representations  may  have  induced  him 
to  do  these  acts,  an  innocent  third  person  shall  not  be  made  to  bear  his 
misfortune,  or  suffer  for  his  credulity.  Cases  of  this  kind  are  numer- 
ous, and  the  principle  on  which  they  all  depend  is  an  equitable  one. 
But  they  all  depend,  nevertheless,  upon  the  fact,  that  the  party  volun- 
tarily parted  with  his  property  and  executed  and  delivered  the  evi- 
dences of  its  alienation.  Not  so,  however,  in  the  case  of  a  forged  or 
stolen  deed.  The  reason  is  obvious.  In  the  latter  case,  there  is  no 
assent  of  the  alleged  grantor.    There  is  nn  Hplivpry 

it  IS  erroneous  to  suppose  that  Everts  delivered  the  deed  to 
Zettler  for  Agnes,  and  thus  made  Zettler  his  agent,  and  is  there- 
fore bound  by  his  acts.  If  the  depositary  of  an  escrow  can  be 
considered  the  agent  of  the  depositor  at  all  (which  we  very  much 
doubt),  he  is  only  such  within  the  scope  of  his  authority.  He  is 
as  much  the  agent  of  the  grantee  as  of  the  grantor.  He  holds 
the  scroll  for  both,  to  be  delivered  on  performance  of  the  condition. 
He  is  as  much  bound  to  deliver  the  deed  on  pertormance  of  the  con- 
dition, as  he  is  to  withhold  it  until  performance.  The  act  of  deljverv 
cannot  be  considered  the  act  of  the  grantor  until  the  condition  be  com- 
plied with.  Without  such  compliance,  there  is  no  assent  to  the  deliv- 
ery.  Toobtain  the  deed  or  scroll  from  the  depositary  without  such 
A^  compliance  is  as  much  against  the  assent  of  the  grantor,  as  it  would  be 

'^  to  take  it  from  the  desk  or  drawer  where  the  grantor  has  deposited  it, 

without  his  knowledge  or  consent.  It  would  seem,  therefore,  that  thgre 
is  a  great  and  fundamental  distinction  between  the  case  where  bv 
fraudulent  representations,  a  person  is  induced  to  execute  and  deliver 
a  cleed^  and  one  where  the  deed  ox.scroll  is  obtained  trom  a  depositary 
without  the  knowledge  or  consent  of  the  depositor,  or  rnmp|iani-p  with 
the  conditions  on  which  the  delivery  depends. 

*^— ~~^ II     ,,    I       B^ I  .       I  fll  -  — ^*— — ^' 

It  would  seem  that  where  a  deed  deposited  as  an  ascrow  is  obtained 
without  performance  of  the  conditions,  by  operating  upon  the  fears  or 
credulity  of  the  depositary,  or  by  fraudulent  collusion  with  him,  or  by 
other  undue  means,  it  be^rs  a  closer  analogy  in  i)rinciple  to  the  case  of 
a^orged  or  stolen  deed,  than  it  does  to  that  of  a  fraud  practiced  direct- 

l^upon  the  grantor,  by  means  of  which  he  is  induced  to  deliver  it. In 

the  latter  case,  the  legal  tit[e  passes,  and  a  subsequent  bona  fide  pur- 
chaser is  protected.  In  the  former,  no  title  passes  whatever,  and  a 
subsequent  purchaser  is  not  protected.  In  the  one  class  of  cases,  there 
is  the  voluntary  assent  of  the  grantor;  in  the  other,  there  is  no  assent 
at  all. 

If  this  reasoning  be  correct,  the  better  opinion  would  seem  to  be. 

that  the  fraudulent  procurement  of  a  deed  deposited  as  an  escrow, 

y    t%^       from  the  Hppn^itnry  hy  the  txrantee  named  in  the  deed^  would  not  oper- 

fj^^""^       ate  to  pass  the  title,  and  that  a  subsequent  purchaser  for  a  valuable 

•^  '       consideration  without  notice,  would  derive  no  title  and  would  not  be 

protected. 


Ch.  2)  EXECUTION   OF  DEEDS  351 

But  it  is  contended  by  the  counsel  for  tlie  complainant,  that  thede- 
fendant  Swift  does  not  show  himself,  by  his  answer,  to  be  a  bona  fide 
purchaser.  If  this  be  so,  we  are  relieved  from  the  necessity  of  decid- 
ing directly  the  other  question.  The  answer  of  Swift  alleges,  "that  he 
paid  to  Agnes  without  fraud,  a  good  and  valuable  consideration  accord- 
ing to  a  contract  then  made  between  them,  and  took  from  Agnes  and 
his  wife  a  conveyance  in  the  usual  form  of  a  warranty  deed,"  etc.  'fhe 
answer  nowhere  alleges  what  the  consideration  was,  how  rnuch,  if  any- 
thinof.  was  paid,  or  when  paid,  though  it  does  state,  upon  information 
and  belief,  that  from  June,  1851,  "the  complainant  was  never  heard  to 
set  up  his  claims  until  after  said  Swift  had  obtained  and  recorded  his 
deed  and  paid  the  consideration,  all  of  which  occurred  on  or  about  the 
8th  day  of  October,  A.  D.  1851." 

To  entitle  a  party  to  the  protection  which  a  court  of  equity  extends 
to  a  subseciuent  bona  fide  purchaser,  he  must  n^'  ke  a  full  statement  of 
all  the  facts  and  circumstances  of  his  case,  so  that  the  court  may  be 
able  to  do  perfect  equity  between  the  parties.  It  is  not  ^suBident 
to  allege  that  he  has  purchased  for  a  valuable  consideration  with- 
out   notice,    but    the    consideration    must    h-Ave hpen-   nrtually    paid 

before  notice.  And  if  a  part  of  the  consideration  only,  has  been  paid 
before  notice,  he  will  be  protected  only  pro  tanto.  Hence  it  is  neces- 
sary that  the  actual  consideration  be  stated,  and  the  amount  actually 
paicL  The  mere  averment  that  he  is  a  purchaser  for  a  valuable  consid- 
eration, and  that  the  consideration  is  paid,  is  not  sufficient,  and  no  in- 
stance, it  is  believed,  can  be  found  where  such  a  statement  in  an  an- 
swer has  been  held  sufficient^  Story's  Eq.  par.  64  et  seq.,  and  cases 
there  cited  ;  Whit^  and  Tudor  Eq.  Ca.  77;  Story's  Eq.  PI.  §§  28,  806, 
852  et  seq.^*"  d,^.-S7^ 

30  iipp/Cc,  G  Wis.  45.*?  nS57) ;  Dixon  v.  Bank,  102  Ga.  401,  31  S.  E.  96,  66  Am. 
St.  Pau<  liK!  (1^97):  Jncksoii  v.  Lynn,  94  Iowa,  151.  02  X.  W.  704,  5S  Am.  St. 
Rep.^s()  (lyn'))  :  llarkrender  v.  Clayton.  50  Miss.  lis-A,  :n  Am.  Rpp.  PAIO  (1S79) ; 
Smitli  V.  South  Royalton  Hank,  .''.2  Vt.  .'141,  70  Am.  Dee.  179  (lSo9),  ace, 
.  See.  also.  Wood  v.  French.  .'iO  Okl.  CS.'j,  130  Pac.  734  (19i:?). 
v^"\ybetlier  tl"^  gl-pntep  nfipipd  in  n  fjeed  delivered  as  an  pscfoAv.  who  has 
\^n>iif,'fu!ty"'T)T47lill('''  '<•  =i^  |"it  it  on  reenid.  can  convey  a  pood  title  to  n  bona 
fijle  purcliaser.  is  a  onyr'tilin  in-rphitiim  t-n  ^|Y|ucll  the  authorities  ai'e  in  eon- 
tlict.  In  I'.lijiht  V.  Schenek,  10  Pa.  2N5.  .51  Am.  Dec.  47S  (1,S49)  the  court  held, 
irrfr*full  and  well-reasoned  opinion,  that  the  title  of  a  liona  fide  nnichiiser  ennlil 
not  lie  defeated  hv  |)ro()f  that  one  of  The  deeds  llifougii  which  he  claimed  title 
w'as  a  wrdULcfnlly  otifained  and  a  wrongfully  re( crded  escrow.  The  court  rested 
it's  decision  on  the  fact  that  the  custodian  of  an  escrow  is  the  a.wnt  of  the 
grantor  as  well  as  the  srantee.  and  if  one  of  two  innocent  nersons  must  suifer 
hv  the  wrouL^ful  act  of  the  ageiit^  lie  who  enndoys  an  unfaitliful  atj:ent.  and 
nuts  it  in  his  iwwer  to  do  the  act,  nmst  hear  tlie  loss:  that  the  apent  has  the 
power  to  deliver  the  deed,  and,  if  he  delivers  it  contrary  to  his  instructions, 
he  will  be  answerable  to  his  prin'^ipal,  and  it  is,  therefore,  reasonable  that  the  ^  ^ 

latter,  and  not  the  iiniocent  purchaser  should  bear  the  h^ss.  In  Everts  v.  Ag-  C^L^^  fiyOjf^ 
pes.  4  Wis.  H4.3,  05  Am.  Dec.  314  (1S55).  the  contrary  was  held.  But  in  the  lat-  fl^_  9  "—tr 
tei-  case  the  court  appears  to  have  acted  in  Ignorance  of  the  decision  in  the  *^V***'  '' 
former  case,  and  in  ignorance  of  tlie  ecpiitahle  doctnne  upon  which  it  rests,  al-  CL^i/*^ 

though  the  former  decision  was  made  six  years  before  the  latter.     This,  as  it  "^T^ 

seems  to  us,  was  an  unfortunate  oversi'Jiht:  for  the  former  decision  is  snpnort- 
0^  by  reasoning  so  strong,  and,  as  it  tseems  to  us,  so  satisfactory,  we  cajiuut  re- 


352  DERIVATIVE  TITLES  (Part  2 

SCHURTZ  V.  COLVIN. 
(Supreme  Court  of  Ohio,  1896.     55  Ohio  St.  274,  45  N.  E.  527.) 

]\TiNSHALL,  J.^^  There  can  be  no  question  but  that  James  E.  Colvin 
Avaived  his  Hen  as  a  vendor  by  taking  a  mortgage  on  the  granted^^g^"^" 
ises  and  other  lands  of  the  grantee,  to  secure  the  purchase  money. 
Such  is  the  settled  law  of  this  state.  The  court's  conclusion  of  law  as  ' 
to  this  is  correct,  and  not  now  questioned  by  the  defendant  in  error. 
So  that  th_e_qnly^^ue^tion  here  presented,_is_as_to  whether  it  erred  in 
its  second  conclusion,  that,  upon  the  facts  found,  tlie  mortgage^jof 
James  E.  Colvin,  being  subsequent  in  point  of  time,  is  superior  jn 
equity  to  the  Schurtz  mortgage.  Priority  is  claimed  on  the  ground 
that  at  the  time  the  SchurTz  mortgage  was  taken,  James  E.  Colvin  held 
the  legal  title  to  his  interest  inthe  premises,  subject,  however,  to  a 
legal  obligation  to  convey  to  James  Colvin  as  purchaser,  on  his  pay- 
ing  the 'purchase  money  or  securing  it  to  be  paid.  If  the  facts  found 
will  bear  this  simple  construction,  then  there  can  be  no  question  as 
to  the  correctness  of  the  court's  conclusion  of  law  thereon.  In  such 
case  the  legal  title  of  James  E.  Colvin  would  have  been  notice  to  the 
world  of  his  rights  in  the  property;  and  no  one  could  have  acquired 
an  interest  in  it  superior  to  his  by  mortgage  or  otherwise. 

The  question,  however,  is  whether  the  facts  as  found  will  bear  this 
construction  as  between  James  E.  Colvin  and  the  Schurtzs.  lames  B- 
Colvin  had  by  a  verbal  agreement  made  in  1884,  sold  his  interest  in 
the  premises  to  James  ColviUj^  who  went  into  possession  under~ITre 
agreement  and  was  iii_  possession  at  the  time  the  Schurtz  loan  was 
made.  Some  time  before  the  making  of  the  Schurtz  mortgage,  James 
E.  Colvin  with  his  co-tenant,  Silas  H.  Colvin,  executed  a  deed  for  the 
land__toJames  Colvin,  the  purchaser,  and  placed  it  in  the  hands  q|^ 
third  person,  Howard  Colvin,  to  be  delivered  when  the  purchase  money 
was  paid  or  secured  by  mortgage^  Afterward,  for  the  purpose  of 
enabling  James  Colvin  to  obtain  a  loan  of  money  on  the  land,  Howard 

sist  the  conviction  that  if  the  attention  of  the  court  had  been  called  to  it,  and 
tlie 'principles  on  wliich  it  rests,  a  different  conclusion  would  have'  been^l'Mcfi- 
ed_;  and  the  subsequent  decisions,  v^-hich  have  followed  the  lead  of  that,  would 
have  no  existence.  *  *  *  Escrows  are  deceptive  instrument!^  They  are 
not  what  they  purport  to  be.  They  purport  to  be  instniments  which  have  been 
delivered,  when  in  fact  they  have  not  been  delivered.  They  clothe  the  grantees 
with  apparent  titles  which  are  not  real  titles.^  Such  deeds  are  capable  of  being 
used  to  enable  the  grantees  to  obtain  credit  which  otherwise  they  could  not 
obtain.  Thej.  are  capable  of  being  used  to  deceive  innocent  purchasers.  And 
the  makers  of  such  instruments  can  not  fail  to  foresee  that  they  are  ITaljle  to 
be  so  used.     And  when  the  maker  of  such  an  instrument  has  voluntarily  parted 

■  with_the  possession  of  it,  and  delivered  it  into  the  care. and  keeping  "of  a  pgt- 
son  of'his  own  selection,  it  seems  to  us  that  he  ought  to  be  responsible  for  tli^ 
use  that  may  in  fact  be  made  of  it^,  and  that  in  no  other  way.  can  the  public  b£ 
protected  aLiainst  the  intolerable  evil  oFEaviug  otu-  public  records  encumbe^d 
with  sucii  false  and  deceptive  instruments."     Hubbard  v.  Greeley,  84  Me.  340, 

^24  Atl.  790,  17  L.  R.  A.  511  (1S92).        ""^ 
31  The  statement  of  facts  is  omitted. 


Ch.  2)  EXECUTION   OF   DEEDS  353 

delivered  the  deed  to  him  tliat  he  might  obtain  a  description  of  the 
premises  and  exhibit  it  as  evidence  of  his  tit_le.  The  facts  found  bear 
this  construction  and  none  otlier.  It  is  true  that  from  the  facts  found 
it  was  not  to  be  regarded  as  dehvered.  But  the  law  has  always  at- 
tached much  importance  to  an  overt  act.  It_contrayenes  its  spirit_to 
allow  that  an  act  may  be  done-Aykfar-an  intention  contrary  to  Ae-act 
itselL  And  whifst,  as  between  parties,  the  intention  may  be  shown, 
it"seLSom  permits  this  to  be  done,  where  to  do  so  ^P^l^by^""^  ^  fraud 
on  innocent  third  persons.  Here,  whilst  James  C^mnwks  in  posses-* 
sion  of  the  land  and  of  a  deed  to  it  by  James  E.  Colvin,  of  whom 
he  had  purchase^  the 'Schurtzs,  on  the  faith  of  these  appearances, 
loaned  him  $6,500^and  took  a  mortgage  on  the  land  to  secure  its^^^ay- 
men't;  and,  as  the  court  expressly  finds,  without  any  knowledge  tha' 
the  deed  had  ever  been  held  as  an  escrow  by  any  one,  and  that  it  was 
taken  in  good  faith  without  any  knowledge  that  James  E.  Colvin_Jiad 
or  claimed  any  interest  in  or  lien  on  the  land. 

It  would  seem  on  the  plainest  principles  of  justice,  that  under  these 
circumstances  James  E.  Colvin,  as  against  the  owner  of  the  Schurtz 
mortgage,  should  not  be  heard  to  say  that  the  deed  had  not  in  fact 
been  delivered  at  the  time  the  mortgage  was  made,  and  that  his  equity 
is  superior  to  it.  He^  trusted  Howard  with  the  deed  to  be  delivered 
when  the  conditions  had  been  j^erforrned^  Howard  violated Jiis^  trust. 
He  delivered  it  to  the  grantee  that  the  latter  might  obtain  a  loan  on 
the  land  "by  exhibitjng  it  as  evidence  of  his  titlg.  The  loan  was  so 
obtained  of  persons  who  had  no  knowledge  of  the  facts  and  were  en- 
tirely innocent  of  any  fraud  in  the  matter.  Who  then  should  suffer 
the  loss  ?  It  may  be  regarded  as  one  of  the  settled  maxims  of  the  law, 
that  whereone  of  jwo  innocent_pera£LQS,.must  jjif|er  from  the  wrong- 
ful act  of  another,  he  must  bear  the  loss  who  placed  it  in  the  power 
^^  ^li^  £ersori  as_  hjs_agent  to^  commit  the  wron.q.  Or,  more  tersely, 
he  who  trusts  most  ought  to  suffer  most.  And  it  would  seem,  that 
the  rights  of  the  parties  in  this  case  should  be  governed  by  this  prin- 
ciple, unless  there  is  some  rigid  exception  established  by  the  deci- 
sions, which  forbids  its  application  where  a  deed  is  delivered  in  escrow. 

Before  considering  this  question,  it  may  be  well  to  note  that  no 
importance  can  be  attached  to  the  fact  that  the  deed,  on_the  faith  of 
which  the  loan  was  made,  Tiad  not  yet  been  recorded^  A  deed  on^e- 
^iy5.''Y-£5§§£s_t^^^^^°  '-^^^  ^^^^  whether  recorded  or  noi^  It  takes^- 
fect  on  deliverv-  The  object  of  recording  a  deed  is  to  give  notice 
to  third  persons,  not  to  perfect  it  as  a  muniment  of  title.  Where  not 
recorded  it  will  be  treated  as  a,  fraud  against  third^j)ersons^  dealing 
with  the  land  without  notice  of  rts  existence.  Hence,  the  first  deed, 
if  delivered,  having  been  duly  executed,  passed  the  title  to  James 
Colvin.  Recording  it  would  have_added  nothing  to  its  effect  as_j 
deed;  and  the  failure  to  record  it  in  no  way  influenced  the  conduct 
of  any  of  the  parties  to  the  suit. 
Aig.Prop.— 23 


354  DERIVATIVE  TITLES  (Part  2 

There  are  some  cases  which  seem  to  hold  that,  where  a  deed  is  de- 
livered as  an  escrow  to  a  third  person  to  be  dehvered  on  the  perftn'm- 
ance  of  certain  conditions,  no  title  passes  if  delivered  without  the 
conditions  being  performed :  and  that  this  is  so  as  agamst  an  innocent 
purchaser  from  the  vendee.  Everts  v.  Agnes,  6  Wis.  463,  is  such  a 
case.  The  argument  there  is  that  no  title  passes  by  deed  without 
delivery;  that  where  a  deed  is  delivered  by  one  who  holds  it  as  an 
escrow,  contrary  to  the  vendor's  instructions,  there  is  no  delivery,  and 
consequently  an  innocent  purchaser  acquires  no  title.  To  tlie  objec- 
tion that  if  this  be  true  .there  is  no  safety  for  purchasers,  the  court 
said  that  if  it  be  not  true,  there  is  none  for  vendors.  This  seems  to 
be  a  misconception  of  the  real  situation  of  the  parties.  A  vendor  may 
protect  himself.  He  may  either  retain  the  deed  until  the  vendee  pays 
the  money  or  select  a  faithful  person  to  hold  and  deliver  it  according 
to  his  instructions.  If  he  selects  an  unfaithful  person,  he  should  suffer 
the  loss  from  a  wrongful  delivery,  rather  than  an  innocent  purchaser 
without  knowledge  of  the  facts.  In  purchasing  land,  no  one,  in  the 
absence  of  anything  that  might  awaken  suspicion,  is  required,  by  any 
rule  of  diligence  to  inquire  of  a  person  with  whom  he  deals,  whether 
his  deed  had  been  duly  delivered.  Where  a  deed  is  found  in  the  gran- 
tee's hands,  a  delivery  and  acceptance  is  always  presumed.  Wash.  Real 
Property  (5th  Ed.)  312,  pi.  31.  The  fact  that  under  any  other  rule 
"no  purchaser  is  safe,"  had  a  controlling  influence  with  the  court  in 
Blight  v.  Schenck,  10  Pa.  285,  292,  51  Am.  Dec.  478,  In  this  case  the 
question  was  whether  a  deed  had  been  delivered,  the  defendant  being 
an  innocent  purchaser  from  the  vendee  of  the  plaintiff.  In  discussing 
the  case  the  court  used  this  language :  "Here  Curtis,  who,  it  is  alleged, 
delivered  the  deed  contrary  to  his  instructions,  was  the  agent  of  the 
grantor.  If  a  man  employs  an  incompetent  or  unfaithful  agent,  Jie 
is  the  cause  of  the  loss  so  far  as  an  innocent  purchaser  is  concerned, 
and  he  ought  to  bear  it^  except  as  against  the  party  who  may  be 
equally  negligent  in  omitting  to  inform  himself  of  the  extent  of  the 
authority  or  may  commit  a  wrong  by  acting  knowingly  contrary  there- 
to,"   And  the  case  was  disposed  of  on  this  principle. 

The  case  on  which  most  reliance  is  placed  by  the  defendant  in  er- 
ror, is  that  of  Ogden  v.  Ogden,  4  Ohio  St.  182.  The  facts  are  some- 
what complicated.  It  seems  to  have  grown  out  of  an  agreement  for 
an  exchange  of  lots  between  two  of  the  parties,  each  being  the  equita- 
ble owner  of  his  lot.  The  deed  for  the  lot  of  one  of  them,  David 
Ogden,  was  to  be  delivered  by  the  legal  owner  to  the  other  on  his  per- 
forming certain  conditions,  and  was  delivered  to  a  third  person  to  be 
delivered  on  the  performance  of  the  conditions.  It  was  delivered 
without  the  conditions  being  performed;  and  was  then  mortgaged  by 
the  grantee  to  the  defendants,  Watson  and  Stroh,  who  claimed  to  be 
innocent  purchasers  for  value.  But  it  was  charged  in  the  bill  that  they 
took  their  mortgages  with  notice  and  to  cheat  and  defraud  the  com- 
plainant;   and  it  does  not  distinctly  appear  whether  this  was  true  or 


Ch.  2)  EXECUTION   OF  DEEDS  355 

not.     From  the  reasoning  of  the  court  it  would  seem  that  the  deed 
had  been  obtained   from  the  party  holding  it  in  some  surreptitious 
planner.    It  is  first  conceded  "that  if  David  reposed  confidence  in  Gil-         *v/  * 
bert.  and  he  violated  that  contidence"  and  delivered  the  deed,  and  loss   ^  (yf^^^  ,  S 
is  to  fall  on  either  David  or  the  mortgagees,  that  David  should"~sus- 
tain_that_loss,  and_j^t_Jiiejmioceni  mortgagees/      Instances  are  then 
given  in  which  the  rule  would  be  otherwise — an  innocent  purchaser 
from  the  bailee  of  a  horse,  or  of  stolen  property,  or  from  one  who  had 
either  stolen  or  surreptitiously  obtained  his  deed.     There  is  no  room 
for  doubt  in  either  of  these  cases.     But  the  court  then  observes  that, 
"If  the  owner  of  land  makes  a  deed  purporting  to  convey  his  land  to 
any  one,  and  such  person  by  fraud  or  otherwise  procures  the  owner 
to  deliver  the  deed  to  him,  a  bona  fide  purchaser  from  such  Iraudulenf 
grantee  without  notice  of  the  fraud,  might  acquire  title^_to_theJi3Jid." 
This,  we  think,  is  equally  clear ;   but,  unless  the  deed  in  the  case  had 
been  stolen  or  surreptitiously  obtained,  or  the  mortgagees  were  guilty 
of  the  fraud  charged,  then,  on  the  reasoning  of  the  court,  the  decree 
should  have  been  in  their  favor.     If  the  case  is  to  be  understood  as 
holding  differently,  then  it  is  not  in  accord  with  the  later  decision  in 
Resor  v.  Railroad  Company,   17  Ohio  St.   139,     Here  the  owner  of 
a  tract  of  land  contracted  to  sell  it  to  the  company,  but  refused  to  de- 
liver the  deed  until  paid.    An  agreement  was  then  made  by  which  the 
deed  was  placed  in  the  hands  of  the  president,  but  it  was  not  to  be 
considered  delivered  until  payment  had  been  complied  with,  and  the 
company  went  into  possession.     The  president  wrongfully  placed  the 
deed  on  record,  and  the  company  then  mortgaged  its  entire  property 
to  secure  an  issue  of  bonds.     The  court  held  the  bond-owners  to  be 
innocent  purchasers,  and  that  the  plaintiff  was  estopped  from  setting 
up  his  claim  as  against  them.     It  might  be  claimed  that  the  delivery 
by  Resor  was  to  the  purchaser,  tlie  company;   and  that  a  deed  cannot 
be  delivered  as  an  escrow  to  the  vendee.    The  latter  statement  is  true. 
But  as  a  matter  of  fact  i'Twas  delivered  to  the  president  of  the  com- 
pany and  not  to  the  company  itself.    There  is  no  reason  why  the  presi- 
dent could  not  have  held  it  as  an  escrow,  and  under  the  agreement, 
must  be  regarded  as  having  so  held  it.    Railroad  Co.  v.  Iliff,  13  Ohio 
St.  235 ;   Watkins  v.  Nash,  L.  R.  20  Eq.  262 ;   Insurance  Co.  v.  C-ole, 
4  Fla.  359.     The  plaintiff  trusted  the  president  to  hold  tlie  deed,  and 
it  was  his  wrongful  act  that  disappointed  him. 

The  supreme  court  of  Indiana  in  a  well-considered  case.  Quick  v. 
Milligan,  108  Ind.  419,  9  N,  E,  392,  58  Am,  Rep.  49,  the  facts  of 
wl^ich  are  very  similar  to  the  case  before  us,  held  that  where  a  deed   /  .        ^ 
is  delivered  to  a  third_j)erson_to  be  delivered  the  grantee,  who  is  'uj  J^^,^ 
already  in  possession  of  the  land,. on  payment  of  the  purchase  money,  ^^ 

andis  delivered  without  tfie  condition  being  performed  that  the  vendor 
is  estopped  as  against  an  innocent  purchaser  to  set  up  his  title.  See, 
aTso^'and  to  the  same  effect,  the  following  cases:    Bailey  v.  Crim,  9 


356 


DERIVATIVE  TITLES 


(Part  2 


.  -l.s 


Biss.  95,  Fed.  Cas.  No.  734 ;  Haven  v.  Kramer,  41  Iowa,  382 ;   Blight 
V.  Schenck,  10  Pa.  285.^^ 

It^isjthe^^eneral,  if  not  universal,  jaile  of  the  courts,  to  protect  the 
innocent  purclmseF~oFprope7ty  Tor  value,  against  such  vices  in  the 
title  of  their  vendors^  as  result  from  fraud  practiced  by  them  in^- 
quirlng  tb.e  proi^erty.  For  in  all  such  cases  the  party  compraTfung  is 
found  to  have  been  guilty  of  some  negligence  in  his  dealings,  or  to 
have  trusted  some  agent  who  has  disappointed  his  confidence  and  is 
more  to  blame  for  the  consequences  than  the  innocent  purchaser,  so 
that  his  equity  is  inferior  to  that  of  such  purchaser.  Hence,  it  is,  that 
the  innocent  purchaser  for  value  from  a  fraudulent  grantee,  is  always 
projected  in  his__title  as  against  the_eciuity_of  the  wronged  grantpr. 
In  Hoffman  v.  Strohecker,  7  Watts  (Pa.)  86,  32  .\m.  Dec.  740,  where 
a  sale  has  been  made  under  execution  upon  a  satisfied  judgment,  the 
satisfaction  not  appearing  of  record,  an  innocent  purchaser  of  the 
person  who  purchased  at  the  sale  was  protected  in  his  title,  although 
the  purchaser  at  the  sale  had  knowledge  of  the  facts,  and  acquired  no 
title.  A  similar  holding  had  been  made  by  the  same  court  in  Price 
v.  Junkin,  4  Watts  (Pa.)  85,  28  Am.  Dec.  685,  and  in  Fetterman  v. 
Murphy,  4  Watts  (Pa.)  424,  28  Am.  Dec.  729.  In  the  case  of  Price 
V.  Junkin  it  is  said  "An  innocent  purchaser  of  the  legal  title,  without 
notice  of  trust  or  fraud  is  peculiarly  protected  in  equity,  andchan^ry 
never  lends  its  aid  to  enforce  a  claim  for  the  land  againsTEIm?^ 

Most  of  the  casescited  and  rehed  on  by  the  defendant  are  not  in 
point.  W^erethe  grantee  wrongfully  procures  the  holder  oi_s._de§^d 
as  an  escrow  to  dehver  it  to  him,  he  acquires  no  title,  or  at  Jea^..a 
voidable  onej  but  this  is  a  very  different  case  from  where  a  third 
person  without  notice,  afterward  and  while  the  grantee  is  in  posses- 
sion, deals  with  him  in  good  faith  as  owner.  Again,  it  may  be  con- 
ceded that  the  delivery  of  a  deed  by  one  who  simply  holds  it  as  a 
depositary,  transfers  no  title;  but  if  he  holds  it  as  an  escrow,  with 
power  to  deliver  it  on  certain  conditions,  a  delivery,  though  wrongful, 
is  not  in  excess  of  his  authority  for,  in  such  case,  the  act  is  within  his 
authority  and  binds  the  principal  as  against  an  innocent  party.  And 
so  a  deed  held  in  escrow,  delivered  after  the  death  of  the  principal, 
passes  no  title.  It  will  readily  appear,  from  reasons  already  given, 
that  such  cases  are  without  application  to  the  case  under  review.  Here 
it  will  be  conceded  that  as_  between  the  grantorand_the_grantee  th  e 
latter  took  no  title,  because  deliverej_J)y  Howardcontrary  to  his  in- 
struction. But  the  plaintiff  relies  on  the  fact  that,  as  found,  he  had 
no  knowledge  that  the  deed  had  ever  been  held  as  an  escrow  and,  in 
good  faith,  loaned  his  money  and  took  a  mortgage  on  the  land  to  se- 
cure it;  and  that  the  defendant  is  therefore  estopped  from  setting 
up  his  legal  title  as  against  him. 


82  See,  also,  Mays  v.  Shields,  117  Ga.  814,  45  S.  E.  68  (1903). 


Ch.  2)  EXECUTION   OF   DEEDS  357 

But  it  is  claimed  that,  as  the  plaintiff  relies  on  an  estoppel,  he  should 
have  pleaded  it.  This  rule,  however,  only  applies  where  the  party 
has  had  an  opportunity  to  do  so.  In  this  case  he  had  none  until  the 
evidence  had  been  introduced.  The  defendant,  in  his  answer  and 
cross-petition,  set  up  tliat  the  deed  from  him  had  been  placed  in  escrow 
and  wrongfully  delivered  to  the  grantee  and  that  the  plaintiff  had 
knowledge  of  the  facts.  The  plaintiff  then  averred  his  want  of  any 
knowledge  or  belief  as  to  the  facts  stated  by  the  defendant  and  denied 
them.  The  court,  however,  found  that  the  deed  had  been  delivered 
to  Howard  Colvin  to  be  held  as  an  escrow  and  was  by  him  wrongfully 
delivered  to  the  grantee :  but  also  found  that  the  plaintiff  was  ignorant 
of  the  facts,  and  an  innocent  piirrha<;pr  fnr  vnlne  -yvithout  notice.  The 
object  of  pleading  is  to  inform  the  opposite  party  of  the  facts  upon 
which  the  pleader  relies  as  the  ground  of  his  claim  or  defense.  And 
here,  when  the  plaintiff  denied  knowledge  of  the  facts  as  pleaded  by 
the  defendant,  he  fairlyadvised  the  defendant  that  he  relied  on  an  es- 
toppel, on  the  ground  of  want  of  notice^  should  the  facts  as  pleaded 
be  made  to  appear  in  the  evidence ;  for,  that  he  was  a  purchaser  for 
value  appeared  from  his  petition,  which  was  taken  as  true  as  it  was 
not  controverted.  Hence  the  claim  of  the  plaintiff  could  in  no  way 
surprise  the  defendantunlfiss  he  was  ignorant  of  the  law.  The  first 
opportunity  the  plainnrtn^  to  plead  an  estoppel  as  against  fames 
E.  Colvin,  was  when  the  facts  were  fully  made  to  appear  in  evidence ; 
and  he  is  not  therefore  precluded  from  doing  so  on  the  facts  as  found 
\>v  the  court. 

Judgment  reversed  _and  judgment  on  the  facts  for_plaintiif  in  er- 

\j'         T1-i><^AMPBELL  V.  THOMAS,     -^l^    ^s.  ^zA^LI^..^*^ 

(Supreme  Court  of  Wisconsin,  1877.    42  Wis.  437,  24  Am.  Rep.  427.)  O/^uvw  /'<**' 

Appeal  from  the  Circuit  Court  for  Racine  County. 

The  case,  stated  most  favorably  to  the  plaintiff,  is  briefly  as  fol-  ""^jUi 

lows:    The  plaintjff  and__Thpmas^entered_jnto,,a:paroJ_agreen^^ 
the  sale  by  the  latter  to  the  formeiLilf  certain^  land,.  at_  a  , stipulated  ' 

price,  to  be  secured  and  paid  as  JiereinaXtei  men^ioned^  In  accordance 
with  such  parol  agreement,  the  plaintiff  paid  Thomas  a  small  sum  on 
account  of  the  purchase  money,  and  the  latter  signedi^-Sealed  and  duly 
acknowledged  a  deed  of  the  premises  to  the  plaintiff  (which  was  in  the 
usual  term  of  a  warranty,. deed),  and  delivered  the  same  to  Judge 

33,where  the  custodian  has. improperly  handed  the  deed. oygT-tO  the  grajatoe 

.J;fee  granTOr^may  have  same  caaceled.     Anderson  v.  Goodwin,  125  Ga.  663,  54 

S.  E.  679  (19{X;);    Bales  v.  Roberts,  1S9  IMo.  49.  87  S.  W.  914  (1905).     And  the 

registration  of  such  a  deed  may  be  enjoined.    Matteson  v.  Smith,  61  Neb.  761, 

86  N.  W.  472  (1901). 


358 


DERIVATIVE  TITLES 


H 


(Part  2 


'^ijt^  ^    Hand,  his  codefendant,  with  directions  to  deliver  it  to  the  plaintiff  if 

^  "^^      the  latter  should^  two  days  later,  deposit  wlthHand  his  notes  for  a 

y^    ihA  '  certain  sum  (part  of  the  price  of  the  land),  and  a  mortgage  executed 


4^- 


by  him  on  the  same  land  to  secure  the  payment  ot  such  note s,  and 
at  the  same  time  pay  to  Hand,  for  the  use  of  Thomas,  the  balance  gf 
he  asfreed  price.     These   proceedings   were   all    in   accordance   with 
At  the  appointed  time,  the  plaintiff  deposited 


such  verbal  agreement.  ,  ^  ,  -    .  ^ 

N  with  Hand  the  notes,  mortgage  and  money  as  agreed,  and  demanded 
the  deed  of  the  land ;  but,  acting  in  obedience  to  instructions  frojji 
Thomas.  Hand  refused  to  deliver  the  deed...  At  the  same  time,  Thomas 
tendered  to  the  plaintiff  the  money  which  the  latter  paid  him  when 
the  verbal  agreement  was  made,  and,  on  the  refusal  of  tlie  plaintiff 
to  receive  it,  left  the  same  with  .Tudge  Hand  for  the  plaintiff. 

This  action  was  brought  to  compel   Tudge  Hand  to  deliver  to  the 
laintiff  the  deed  thus  deposited  with  him  by  Thomas.     The  circuit 
court  gave  judgment  for  the  plaintiff,  that  the  defendant  Hand  de- 
liver such  deed  to  him,  and  that  Thomas  pay  the  costs  of  the  action. 
From  this  judgment  Thomas  appealed. 

[The  court  concluded  that  the  judgment  should  be  reversed.  A 
petition  for  rehearing  having  been  granted,  the  case  was  reargued,  and 
tlie  following  opinion  handed  down.] 

Lyon,  J.  The  controlHng  question  in  this  case  is,  whether  it  is  es- 
sential to  the  plaintiff's  ngHt  ot  action  that  there  was  a  valid  execu- 
tory contract  between  the  parties~?oF  the  purchase  and  sale  of  the 
land  described  in  the  deed  of  the  defendant  deposited  with  Judge 
Hjnd.  If  this  question  be  answered  m  the  affirmative,  the  plaintiff 
cannot  recover ;  for  it  is  certain  that  no  ijiote  or  memorandum  of 
the  alleged  agreement  under  which  the  plaintiff  claims,  expressing 
the  consideration  thereof,  was  reduced  to  writing  and  subscribed  by 
the  defendant.    Rev.  St.  1858,  c.  106,  §  8. 

The  learned  counsel  for  the  plaintiff  has  met  this  question  squarely, 
and,  in  his  elaborate  and  most  able  arguments  on  the  motion  for  a 
rehearing  and  on  tlie  rehearing  of  the  cause,  has  maintained  the  prop- 
osition that  "it  is  not  true  that  a  person  must  be  under  a  previous 
binding  executory  contract  to  convey  the  lands  described  in  tlie  deed 
to  the  grantee,  in  order  to  place  a  deed  thereof,  delivered  to  a  third 
person  on  condition  for  the  grantee,  beyond  the  control  of  the  grantor." 

Undoubtedly  there  is  a  class  of  cases  in  which  this  proposition  is 
true.  These  are  the  cases  where  the  deed  has  been  delivered  by  the 
grantor  to  a  third  person  wnth  instructions  to  deliver  the  same  to 
the  grantee  on  the  happening  of  a  future  certain  event — as  the  death 
of  the  grantor  or  some  other  person, — and  such  conditional  delivery 
is  assented  to  by  the  grantee.  In  such  a  case,  if  the  grantor  reserves 
no  control  over  the  deed,  he  cannot  after  such  delivery  recall  it,  but 
the  grantee  is  entitled  to  it  upon  the  happening  of  the  event,  although 
there  is  no  valid  executory  contract  to  support  it.  The  reason  of  this 
is,  that  the  first  delivery  of  tlie  deed  passes  to  the  grantee  the  title  to 


Ch.  2)  EXECUTION   OP  DEEDS  359 

the  land,  and  thus  relieves  him  of  the  obligation  to  make  title  through 
any  contract  other  than  tliat  expressed  in  the  deed  itself. 

But  byatl^of  the  authorities  a  deed  so  deposited  with  a  third  per- 
sqnjLo^be  delivered  to  the  grantee  on  the  happening  of  some  event  \'~f;;fu{  /^\^k. 
in  the~future  which  may  or  may  not  happen,  does  not  pass  title  to 
the  lantj*  described  in  it  to  the  grantee  until  such  event  occurs,  and 
then  onlY_from  that  time,  or  perhaps  from  the  actual  delivery  of  the  J 
deed  to  the  grantee  after  tlie  event  has  occurred.     There  may  be  ex^ 
ceptional  cases,  as  where  a  man  delivers  his  deed  in  escrow  and  dies  f^j^^JpLcxi 
before  the  conditions  of  the  deposit  are  fulfilled.     In  such  cases,  it     ,y-  O^xa*. 
has  been  said  that  from  necessity  after  the  conditions  are  fulfilled  the 
deed  must  take  effect  by  relation  as  of  the  time  of  the  first  delivery. 
This,  however,  is  not  one  of  the  exceptional  cases:    and  it  must  be.^    .        ^^ 
conceded,  we  think,  that  the  deposit  of  the  deed  with  Judge  Hand  by  \ 

the  defendant  with  the  assent  of  the  plaintiff  did  not  transfer  title  to  A>w  jL-j^ei-^ 
the  plaintiff.  ^  ^5^  ^  ^ 

Because  such  deposit  did  not  divest  the  plaintiff  of  his  title  to  the  l^ 

land,  there  is  no  executed  contract  for  sale ;  and  hence,  it  seems  al- 
most too  plain  to  be  questioned  or  doubted  that,  before  the  plaintiff 
can  obtain  the  delivery  of  the  deed  and  the  title  to  the  land^jafter 
the  defenH^ipt  Vias  recalled  the  deed  and  repudiated  thewhole  tjjnsac- 
tion,  he  miisL-SllQ^  that  the  defendant  has  made  a  valid  and  binding 
agreement  to.^dl  and  convey  the  land.  And  such  an  agreement  can 
be  evidenced  only  by  a  written  note  or  memorandum  thereof,  express- 
ing the  consideration  and  subscribed  by  the  defendant. 

In  many  of  the  cases  cited,  there  was  no  valid  executory  contract 
for  the  sale  of  the  land,  but  the  grantor  permitted  the  deed  to  be 
delivered  by  the  depositary  to  the  grantee  upon  performance  of  the 
parol  conditions  of  the  deposit.  Undoubtedly,  tlie  final  delivery  to 
the  grantee  in  such  cases  operated  to  pass  the  title ;  as  it  would  in 
the  present  case  had  the  defendant  seen  fit  to  allow  his  void  parol 
agreement  to  be  thus  consummated.  In  other  cases  cited,  there  was 
a  compliance  with  the  statute  of  frauds.  Everts  v.  Agnes,  4  Wis.  343, 
65  Am.  Dec.  314,  is  one  of  them.  But  we  have  not  discovered  a  sin- 
gle case  in  which  it  has  been  held  that  one  who  has  deposited  a  deed 
of  land  with  a  third  person  with  directions  to  deliver  it  to  the  granted  \^jJJii- 
ojLiiiS^^PP^'^^S  of. a  given  event,  but  who  has  made  no  valid  execu-  fisjsfi,  /\JL^ 
tory  contract  to  convey  the  land,  may  not-  revoke  the  directions  to  tlie    i  «       i 

depositary  and  recall  the  deeci  at  any  time  before  the  conditions  of  7\A^^yJ-^^ 
the  deposit  have  been  complied  wuh  ;    provided  those  conditions  are  (Xa^  Aaj^ 
s^ch  that  the  title  does  not  pass  at  once  to  tlxe  grantee  upon  delivery  ,      iV-f-   ' 
oTlhedeed  to  the  depositary...  t/rv^**AA-«|V 

Tlie  case  of  Welch  v.  Sackett,  12  Wis.  243 ;   Brandeis  v.  Neustadtl,  CfiJttJu^  M^ 
13  Wis.  142,  and  Prutsman  v.  Baker,  30  Wis.  644,  11  Am.  Rep.  592,  M 
as  well  as  that  of  Thomas  v.  Sowards,  25  Wis.  631,  contain  much   ^*'V^'wv4  f^ 
doctrine  in  perfect  accord  .with  the  views  here  expressed.     The  latter  >g^jCt/Civtir  ^ 
of  these  cases,  as  w^as  observed  in  the  first  opinion  filed  herein,  is-j-,      V>,j 


-k 


360  DERIVATIVE  TITLES  (Part  2 

direct  authority  that  in  this  case  the  plaintiff  must  show  a  vaHd  ex- 
ecutory agreement  for  the  sale  and  purchase  of  the  land,  or  fail  in 
the  action.  And  here  it  should  be  observed  that  the  language  of  the 
opinion  in  Thomas  v.  Sowards  which  was  commented  on  at  some 
length  in  the  former  opinion  in  this  case,  was  manifestly  employed 
with  reference, to  the  facts  in  that  case,  without  any  intention  to  lay 
down  a  general  rule  of  law  applicable  to  other  cases.  In  that  view, 
the  language  seems  unexceptionable.  So  far  as  those  comments  are 
concerned,  I  am  still  inclined  to  the  opinion  that  the  views  there  ad- 
vanced a-re  correct.  The  proposition  that  the  executory_contract  may 
be  j)royed  b^Jhe  deed  (if  it  is  stated  therein)  is,  however,  jiilLjQpen 
in  this  court  for  argument  and  decision  in  a  proper  case^ 

Our  conclusion  is,  that  this  case  was  correctly  decided  in  the  first 
instance.  The  judgment  of  the  circuit  court  must  therefore  be  r^- 
versed,  and  the  cause  remanded  witli  the  direction  to  that  court^to 
dismis_s_the  complaint.^*     (^>u<i^.>^  ^t^  L<y^  (Ve6^...v-<^    ^\ 

^5  J  3  4  The  conciirrincr  opinion  of  rHh,  C.  J.,  is  omitted.  *    -^ 

^  Fitcli  V.  Bunch,  ?,0  Caj.  208  Q866) :  Clark  v.  Caujphell,  23  Utah,  569,  65  Pac. 
496,  54  L.  R.  A.  5(58,  90  Am.  St.  Rep.  710  (1901) ;  Davis  v.  Brigham,  56  Or. 
41,  107  Pac.  961,  Ann.  Cas.  1912B,  1340  (1910),  ace.  See,  too,  Anderson  v.  Mes- 
senger, 158  Fed.  250,  85  C.  C.  A.  468  (1907) ;  Brown  v.  Allbright,  110  Arli.  394, 
101  S.  W.  1030,  Ann.  Cas.  1915D,  692  (1913), 

"Th£.  yies^ , referredjto_jlhat  exnre.ssed  in  Camnhell  v.  Thomas!  has  no  con- 
siderations of  policy  or  convenience  in  its  favor,  and  its liecessary  result  is  coii- 
sidera5Ty~fo^dgrn\Ct  trom  the  practical  utility  nf  ihP  fiocrrine  ot  Conditional 
(Mi^^^  One  onjection  to  such  a  view  would  seem  to  lie  in  the  fact  that  the 
docmne  of  conditional  delivery  is  not  peculiar  to  conveyances  of  land,  but  is 
recognized  also  incoTruectiou^yifli- contracts  under  seal  and  also  bills  and  "notes, 
it'  there  can  be  no  conditional  delivery  of  a  conveyance  in  the  absence 'o5  a 
contract  of  sale,  that  is,  a  contract  to  execute  a  conveyance,  it  would  seem  a 
reasonable  inference  that  there  can  be  no  conditional  delivery  of  a  contract 
under  seal  or  a  promissory  note  unless  there  is  a  contract  to  execute  such  an 
instrument.  There  is  _oo  mere  reason  for  requiring  an  auxiliary  contract  jn 
thannt^  pnsp  |]^an  in  tbr  Y.  t  it  h[\<  never  been  su'^gestiKi,  so  rar  as 

t^Fwi-iter  knows,  that  tlr  e  a  eL>;iilii:Miial  deliveiT  of  a  conlracFunner 

se;Vl  01-  n  iimnissMry  note  only  when  there  is  a  legally  valid  contract  "to  execute 
the  ro!itr;Kt  or  iiufe.  Another  consideration  adver.se  to  the  view  referred  to 
lies  in  the  fact  that,  while  the  doctrine  of  deliveiT  in  escrow  was  recognized 
at  least  as  early  as  the  first  half  of  the  fifteenth  century  (see  Y.  B.  13  Hen, 
IV.  8;  Y.  B.  8  Hen,  VI,  26;  Y.  B.  10  Hen.  VI.  25\  a  purely  executory  con- 
tract, not  under  seal,  was  not  then  enforceable  either  in  the  common  law 
courts,  or,  it  appears,  in  chancery.  That  being  the  case,  the  requirements  of 
an  extraneous  contract  in  order  to  make  the  delivery  in  escrow  effective  would, 
in  the  fifteenth  or  sixteenth  centuries,  have  necessitated  a  contract  under  seal, 
and  it  seems  hardly  probable  that  such  a  delivery  of  an  obligation  or  convey- 
ance under  seal  was  always  accompanied  by  another  obligation  under  seal  call- 
ing for  its  execution.  The  subject  of  deliveiy  in.escrQW.Js.  tmated  with  ^on- 
gjfiprnhlP  fullness  in  nt  Innst  *^^'^  "T  ^""  ^'rii^i-  book.sjCFerkins,  Conveyancing, 
§§"  TyS-Il44 ;  Sheppard's  Touchstone,  58,  59),  anil  tiierg  is  not  the  slightest  sug- 
o-Pfitirrr]  \r\  pit.hpr  as  to  thCJaefiessJit^ .of-sudi  an  auxiliary  contvart.  It  is,  to  say 
tlie  least,  somewhat  extraordinary  that  an  integral  element  in  a  doctrine  daTmg 
from  the  commencement  of  the  rifteenth  century  should  have  ixmiuiai'il  to  Jje 
discovered  by  a  California  court  in  .th(;  latter  half  of  the  nineleenth^^'  U.  T. 
Tiffany,  "Conditional  Delivery  of  Deeds,"  14  Col,  Law  Rev.  389,  399-400. 


Ch.  2)  EXECUTION   OF  DEEDS  361 

HULL  V.  SANGAMON  RIVER  DRAINAGE  DIST. 

(Supreme  Court  of  Illinois,  1906.     219  111.  454,  76  N.  E.  701.) 

Cartwright,  C.  J.^°  This  is  an  a^gealfrgn^jjil^j^gr^of  the  county 
cour.t  of  McLean"  county  qngnizing^  the  Sanga,mon  River  drainage  dis- 
trict, m  said_county,  and  cmifirmino;  an  assessment  of  benefits  against 
appellant'.s  lands  hy  tlie  commissioners  of  said^district.  The  proceed- 
ing  was  commenced  by  fiHng  a  petition  for  the  organization  of  the  dis- 
trict under  what  is  commonly  known  as  the  "Levee  Act."  2  Starr  & 
C.  Ann.  St.  1896,  p.  1500,  c.  42,  par.  29.  Commissjoners  wereappoint- 
ed  by  the  court,  and  they  examined  the  lands  proposed  to  be  drained, 
and  over  and  upon  which  the  work  was  proposed  to  be  constructed,  and 
madea  reports  as  required  by  section  9  of  the  act  (paragraph  Z7),  rec- 
ommending the  organization  of  the  district.  .Appellant  filed  objections 
to  Jthe  report,  and  his  objections  were  overruled.  " 

It  is  first  contended  that  the  court  erred  in  overruling  the  objections 
and  in  not  dismissing  the  petition,  for  the  reason  that  it  was  riot  signed 
by  a  majority  of  the  adult  owners  of  the  land  within  the  district  an d 
vmo  represented  one-third  in  area  of  the  lands  to  be  reclaimed  or  ben- 
efited. The  petition  was  signed  in  the  summer  of  1903,  and  the  hearing 
was  in  the  fall  of  that  year,  and  Mark  Banks,  one  of  the  signers,  was 
counted  by  the  court  as _the  owner  of  160  acres  of  land.  He  had  previ- 
ouslysigned  and  acknowledged  a  deed  of  the  land  to  Harrison  Frink 
and  Sheridan  J.  Frink,  and  hnr^^lpjgsjl^ed  the. deed  in  the  First  National 
Hanl^  ofElbomington,  to  be  delivered  on  payment  of  the  purchase  price 
on  or  before  February  15,  1904.  and  in  case  of  such  payment  he  was  to 
deliver  possession  on  or  before  March  1,  1904.  The  deed  placed  in 
escrow  conveyed  nothing  until  the  conditions  for  its  delivery  were  per- 
formed on  FLliniary  15,  1904,  when  it  was  delivered  to  the  grantees. 
Leiter  v.  Pike,  127  111.  287,  20  N.  E.  23.  "  The  title  did  not  pass  out  of 
Mark  Banks  until  the  deed  took  eflFect  and  the  grantees  became  the 
owner  of  the  land,  and  he  was  properly  counted  as  an  o\vner.     *     *     * 

The  judgment  is  reversed,  and  the  caus^  remanded.  Reversed  and 
remandedJ^" 

85  A  portion  of  the  opinion  is  omitted. 

se^uppose  the  gi'nntee  in  an  escrow  deed,  after  performance  of  the  condi- 
'^tlons,  in  order  to  save  the  propertj'  from  tax  sale^,  I^ays  the  taxes  which  were 
assessed  against  the'property  after  the  deposit  or  the  deed  wifli  fBe  third  par- 
ty but  before  the  performance  of  the  condition.  Has  he  anv  remedy  against 
the  grantor?     Mohr  v.  Joslin,  162  Iowa,  3-1,  142  N.  W.  981  (1913). 

As_to  the,  deposit  of  a  deed  in  escrowworkinga^'chajige  in.  interest  In  the 
prgpert^  insured?'  and  so  avoidlns  an  insurance  policy  on  the  property  describ- 
ed in  the*"deeiarsee  Pomerov  v.  .l':tna  Ins.  Co.,  86  Kan.  214,  120  Pac.  344,  38  L. 
R.  A.  (N.  S.)  142,  Ann.  Cas.  1913C,  170  (1912). 

See.  also.  Furaess  v.  Williams,  11  111.  230  (1849) ;  Hoyt  v.  McLagan,  87  Iowa, 
746,  55  N.  W.  18  (1893). 


302  .  DERIVATIVE  TITLES  (Part  2 

FARLEY  V.  PALMER. 

(Supreme  Court  of  Ohio,  1870.    20  Ohio  St.  223.) 

By  the  Court.  Farley,  the  ghmtiff,  seeksJto_reyerse  Jhejiidsnient 
of  the  court  below,  decreeing  the'specmc  execution  of  his*written  gon- 
tract^^made  with  Palmer  and  wife  for  the  .purchase  of  her  land.  At 
the  time  of  making  the  contract  a  deed  was  executed  by  Palmer  and 
ife  and  placed  in  the  hands  of  a  third  person^  and  by  the  terms  ofjhe 
ontract  this  deed  was  to  be  delivered  to  Farley  upon  his  paying jhe 
stipulated  purchase-money.  Upon  Farley's  refusal  to  pay  the  money 
and  receive  the  deed  at  the  time-agreed  upon,  Palmer  and  wife  brqiight 
their  action  for  a  specific  execution.  And  now  it  is  contended  that  Far- 
ley was  not  bound  by  the  contract,  on  the  alleged  ground  that  as  Mrs. 
Palmer,  being  a  married  woman,  was  not  bound,  there  was  no  mutu- 
ality of  obligation.  We  think  otherwise.  Mrs^  Palmer  was_bound. 
She  had  no  power  to  revoke  the  deed^  The  person  holding  the  deed 
)  was  the  agent  of  both  parties,  and  his  delivery,  according  to  the  terms 
of  the  contract,  without  her  consent,  or  even  after  her  death,  woiild 
[  have  been  good.  Indeed,  the  authorities  show,  that  upon  fulfilment  of 
^the  condition  by  Farley  the  title  would  have  vested  in  him,  jpsq^  facto, 
;  without  further  delivery.  The  contract  was  executed  on  the  part  of 
'TMrs.  Palmer — the  title  had  passed  from  her — subject  only  to  the  p.er- 
formance  of  the  condition  on  the  part  of  Farley. 


r 


Motion  overruled.^^ 


•4^^"^^^^ 


J^* 


HALL  V.  HARRIS. 
(Supreme  Court  of  North  Carolina,  1848.    40  N.  C.  303.) 

Cause  removed  from  the  Court  of  Equity  of  Montgomery  County, 
at  the  Spring  Term,  1848. 

The  facts  in  this  case  are  fully  stated  in  a  case  between  the  same 
parties,  Hall  v.  Harris,  38  N.  C.  289,  and  so  much  of  them  as  is  neces- 
sary to  the  understanding  of  the  decision  now  made  is  set  forth  in  the 
opinion  of  the  Court  here  delivered. 

Pearson,  J.  When_this  case  was  before  this  Court  at  June  Term 
1844,  it  was  decided,  that  an  execution  does  not  bind  equitable  interests 
and  rights  of  redemption  from  its  teste,  as  in  ordinary  cases^  but  from 

37  What  if  the  grantor  flies  before  the  condition  if?  performed^  See  Guild 
V.  Althouse,  71  Kan.  G04,  SI  Pac.  172  (1905);  Nolan  v.  Otney,  75  Kan.  311,  89 
Pac-.  ti!>0,  1)  L.  R.  A.  (\.  S.)  317  (1907). 

Whnt  if  the  depositary  refuses  to  deliver  the  deed  to  the  grantee  after  tlie 
conditions  Jiave  been  performed?  See  Tonihler  v.  'Sumiiter.  97  Ark.  480,  ^S-Fs. 
W.  Oiw  (1911);  Knopf  v.  Hansen,  37  Minn.  215.  .33  N.  W.  7.S1  (1887);  Hujrhes 
V.  Thistlewood.  40  Kan.  232,  16  Pac.  629  (188S),  where  the  retention  of  the  deed 
by  the  depositary  was  by  direction  of  the  jri-antor;  Rej;an  v.  Howe,  121  Mass. 
424  (1877),  where  the  grantor  had  procured  the  deed  from  the  depositary  on 
the  statement  that  he  intended  to  hand  it  to  the  grantee. 


Ch.  2)  EXECUTION   OF  DEEDS  3G3 

the  time  of  "execution  served;"  and  it  was  declared  tliat_tlie  plaintiff 
wouMbe  entitled  to  a  decree,  provided  the  deed,  under  which_he 
claimed,  took  effect  before  the  execution,  under  which  the ^deiendant 
Harris  claimed,  was  issued.    38  N.  C.  289. 

We  are  satisfied,  that  the  view  then  taken  of  the  case  was  correct. 
The  rights  of  the  parties  depend  upon  that  single  question. 

The  execution  issued_.on_the  7th  o^f_  March,  1840.     The  plaintiff  al- 
leges that  the  deed  took  effect  on  the  2d  of  March,  1840.     The  facts 
are,  that  on  the  2d  of  March  the  plaintiff  and  the  defendant  Morgan, 
made  an  agreement,  by  which  the  plaintiff'  was  to  give  ]\Iorgan  $725^ 
for  the  land,  to  be  paid,  a  part  in  cash,  and  the  balance  in  notes  and 
S£.ecific  articles^  as  soon  as  the  plaintitt  was  able^  which  he  expected 
would  be  in  a  few  days^  and  Morgan  was  to  make  a  deed  to  the  plain- 
tiff, and  hand  it  to  Col.  Hardy  Morgan,^  to  be  by  him  handed  to  the 
plaintiff,  when  he  paid  the  price.    Accordingly  on  that  day  the  plaintiff    Vw»-*-*-<-<  ' 
paid  to  Morgan  a  wagon  and  some  leather,  which  was  taken  atjthe /j^^^,^;;^-,^ 
price  of  $57.50  and  Morgan  signed  and  sealed  the  deed,  and  handed  jt^  t-n'^  ^x. 
to  Col.  Morgan  to  be  handed  to  the  plaintiff',  when  he  paid  the  balance   ^f   "    y 
of  the  pri_ce.    The  deed  was  witnessed  by  Col.  Morgan  and  one  San- 
ders, and  is  dated  on  the  2d  of  March.    Afterwards^n  the  tenth  of    , 
March,  the  plaintiff  paid  to  Morgan  the  balance  of  the  $725,  witliTlie    ***^''*^  / 

excejnion  of  $152,  for  which  Morgan  accepted  his  note,  and  the  deed  ^A^  i^. . 

was  then  handed  to  the  plaintiff  by  Col.  Morgan. 

I'he  question  upon  these  facts  is,  whether  the  deed  takes  effect  from     / 
the  2d  or  from  the  10th  of  March_?^   We  are  of  opinion,  that  it  takes    * 
effect  from  the  2d,  at  which  time,  according  to  the  agreement,  it  was 
signed,  sealed,  and  delivered  to  Col.  Morgan,  to  be  delivered  to  the 
plaintiff,  when  he  should  pay  the  price.     Ihe  effect  of  the  agreement 
was  to  give  the  plaintiff'  the  equitable  estate  in  the  land,  and  to  give 
Morgan  a  right  to  the  price.     The  purpose,  for  whiclTthe^deed^was  nu^^y^O-^n. 
deljv^ered.4o_S_illinJ-P^son,  instead  0^^6111^  delivered  directly  tojl)Q.Ar      jT   Q' 
plaintiff,  wasmerely  tosccure  the  paynTcnt  of  tjie  j^rice.     When  that   *^  d"-*^ 
was  paid,  tiVeplalntiff  had  a  right  to  the  deed.    The  purpose,  for  which    X*"*^'''^ 
it  was  put  into  the  hands  of  a  third  person,  being  accomplished,  the 
plaintiff  then  held  it  in  the  same  manner,  as  he  would  have  held  it,  if 
it  had  been  delivered  to  him  in  the  first  instance.    This  was  the  inten- 
tion, and  we  can  see  no  good  reason  why  the  parties  should  not  be  al- 
lowed to  effect  their  end  in  this  way. 

It  is  true,  the  plainiiff_wasjTot  absolutel¥...bQiind  to  pay  the  balarice 
of  the  price.  Perhaps,  he  had  it  in  his  power  to  avail  himself  of  the 
statute  of  frauds,  and  it  would  seem  from  the  testimony,  that,  at  one 
time,  he  contemplated  doing  so,  on  account  of  some  doubt  as  to  the 
title;  bjjHj£Xomplied_w]thjlie  condition  and  paid  the  pric^  His  rights 
cannot  be  affected  by  the  fact]  that  he  might  lla^'c  avojded_it.  If  the 
vendor  had  died,  after  the  delivery  to  the  third  person,  and  before  the 
payment,  the  vendee  upon  making  the  payment,  would  have  been  enti- 
tled to  the  deed ;  and  it  must  have  taken  effect  from  the  first  delivery ; 


364  DERIVATIVE  TITLES  (Part  2 

otherwise,  it  could  not  take  effect  at  all.  The  intention  was,  that  it 
should  be  the  deed  of  the  vendor  from  the  time  it  was  delivered  to  the 
third  person^ j)rovided  the  condition  was  complied  with.  If  this  in- 
tention is  bona  fide  and  not  a  contrivance  to  interfere  with  the  right  of 
creditors,  of  which  there  is  no  allegation  in  this  case,  it  must  be  allowed 
to  take  effect. 

A  distinction  is  taken  in  the  old  books,  between  a  case,  when  a  pa- 

Iper,  being  signed  and  sealed,  is  handed  to  a  third  person,  with  these 
words ;  "take  this  paper  and  hand  it  to  A.  B.  as  my  deed,  upon  condi- 
tion" &c.,  and  a  case  where  these  words  are  used,  take  "this  deed  and 
hand  ii  to  A.  B.  upon  condition,"  &c.  In  the  latter  case  it  takes  effect 
presently ;  while  in  the  former,  it  is  held,  in  most  cases,  not  to  take  ef- 
fect, until  the  second  delivery.    Touchstone,  58,  59. 

The  distinction,  upon  which  this  "diversity"  is  made,  would  seem  too 
nice  for  practical  purposes,  to  be  a  mere  play  upon  words. ^^    Thgja- 
'*'fjJi^  tention  of  the  parties,  whether  one  set  of  words  be  used  or  the  other. 
V''^    2      is'  to  make  it  a  deed  presently,  but  to  lodge  it  in  the  hand  of  a  third 
'jTjuA     *     person,  as  a  security  tor  the  performance  of  some  act.    If  it  was  not 
to  be  a  deed  presently,  provided  the  condition  be  afterwards  performed, 
the  maker  would  hold  it  himself,  and  the  agency  of  the  third  person 
would  be  useless.     Indeed  the  idea,  that  the  third  person  is  a-mere 
agent  to  deliver  the  paper  as  a  deed,  if  particular  words  be  used,  "es- 
crow" for  instance,  even  by  the  old  cases,  has  many  exceptions,  and 

*^ — .        the  deed  is  allowed,  in  such  cases,  to  take  effect.  ,_As  if  the  maker  dies, 

yHju"^*^  as  in  the  case  above  put ;  or  becomes  non  c(:)^ii^os  mentis ;  or,  being  a 
In  ^^^JLX^'i^viiQ.  sole,  majyjjjgs;  or  if  the  vendor  should  create  any  incumbrance, 
^__J.J--<^  as  by  making  a  lease ;  in  all  such  cases,  when  the  jgaper  was  handed  to 
^/i^  ^^^"^  the  third  person  to  be  delivered  as  a  deed  upon  condition  &c,,  it  is  aj- 
ij^c>**'^'*'t_JllQw£d  to  take  effect  from  the  first  dehvery,  in  order  to  effectuate  tlie 
-^  V'*'^^  intention  of  the  parties.  In^otlier  words,  when  it  can  make  no  differ- 
^^^ )  ence,  the  deed  takes  effect  from  the  second  delivery,  but  if  it  does  make 
►^  a  difference,  then  the  deed  takes  effect  from  the  first  delivery.     This 

t^^^^^h  jU^^^^'^^^y  yields  the  question.  The_]ast,.exceptiQix.,cited  abov-C,  asulojhe 
X'^^/.r elation  of  the  deed,  in  cases  of  "escrow"  to  avoid  a  lease,  iakes^inihe 
case  tinder  consideration;  for  it  is  the  same,  whether  the  incumbr;^jice, 
to  be  avoided,  proceeds  from  the  act  of  the  party,  or  from  the  eft'e^ct 
of  an  execution,  as  the  object  is  to  make  the  deed  effectual  an^^to 
qarr^out.,the  intention^    State  v.  Pool,  27  N.  C.  105. 

But,  in  truth,  the  distinction  cannot  be  acted  upon — it  is  merely  ver- 
bal, and  whether  one  set  of  words  would  be  used,  or  the  other,  would 
be  the  result  of  mere  accident.  The  law  does  not  depend  upon  the  ac- 
cidental use  of  mere  words  "trusted  to  the  slippery  memory  of  wit- 
nesses." It  depends  upon  the  act,  that  a  paper,  signed  and  sealed,  is 
put  out  of  the  possession  of  the  maker.  It  must  be  confessed,  (and 
with  reverence  I  say  it,)  that  many  of  the  dicta  to  be  found  in  the  old 

38  state  BanK  V.  Evans,  15  N.  J.  Law,  155,  28  Am.  Dec.  400  (1S35)  ace. 


Ch.  2)  EXECUTION  OF  DEEDS  365 

books,  in  reference  to  deeds,  are  too  "subtle  and  cunning"  for  practical 
use,  and  have  either  been  passed  over  in  silence,  or  wholly  explained 
away. 

We  are  satisfied  from  principle  and  from  a  consideration  of  the 
authorities,  that  when  a  paper  is  si^ied._and_iealedjajQd  handed  to  a 
third  person  to  be  handed  to  another  upon  a  condition,  which  is  after- 
wards complied  with,  the  paper  becomes  a  deed  by  the  act  of  parting 
with  the  possession,  and  takes  effect  presentlv;  without  reference..io 
the  precise  words  used,  unless  it  clean^^ppears  to.  be  the  intention. 
that  it  should  not  then  become  a  deed^^and  this  intention  would  be  de- 
feated by  treating  it  as  a  deed  from  that  time,  as,  if,  no  fraud  being 
suggested,  tjie  paper  is  handed  to  the  tliird  person,  before  the  parties 
have  .concluded  the  bargain  and  fixed  upon  the  terms ;  which  cannot 
well  be  supposed  ever  to  be  the  case ;  for  ip  ordinary  transactions,  the 
preparation  of  deeds  of  conveyance,  which  is  attended  with  trouble 
anjjexpensg^  usually  come§.  after  the_agreeiiieiit  t.Q_s_ell. 

There  must  be  a  decree  for  the  plaintiff,  witli  costs  against  the  de- 
fendant Harris.  '^'~ 

Per  Curiam.    Decree  accordingly. 


39 


f-^{f^-^-^ 


MAY  V.  EMERSON. 

(Supreme  Court  of  Oregon,  1908.     52  Or.  262,  96  Pac.  454,  1065,  16  Ann. 

Cas.  1129.) 

This  is  an  actipa  qf.  ejecimenf,  commenced  on  October  23,  1907,  to 
recover  the  possession  of  lots  35  and  36,  in  block  11,  Stewart's  second 
addition  to  Baker  City.  The  answer  admits  that  defendant  is  in  pos- 
session, and  alleges  that  he  is  the  owner  of  the  lots  in  fee  simple ;  an3 
as  a  second  defense  alleges  possession  under  a  contract  of  purchase, 
as  disclosed  in  the  stipulation  of  facts,  which  includes  the  following: 
That  on  February  24,  1906.  defendant  purchasedjhe  lots  from  Dugan 
and  wife,  the  price  to  be  paid  in  monthly  installments,  continuing  oy^r 
a  period  of  more  than  a  year ;  that  a  deed  was  executed  by  Dugan  ^d 
wife,  and  deposited  in  escrow  with  AI.  S.  Hughes,  to  whom  payrnents 

39  Whitfield  v.  Harris,  48  Jliss.  710  (1873) ;  Dettmer  v.  Behrens,  106  Iowa, 
585,  76  N.  W.  853,  68  Am.  St.  Rep.  326  (1898),  ace. 

In  Vorheis  v.  Kitcli,  8  Phila.  (Fa.)  554  (1871),  the  wafe  of  the  grantor  who 
had  become  such  between  the  depositing  of  the  deed  in  escTow  and  the  per- 
foi-mance  of  the  condition  was  held  not  entitled  to  dower. 

In  Lewis  v.  Prather,  21  S.  W.  538,  14  Ky.  Law  Rep.  749  (1893),  it  was  held 
that  a  deed  made  by  the  grantor  after  the  deposit  of  the  escrow  deed  but  be- 
fore the  performance  of  the  condition  to  a  purchaser  who  knew  of  the  escrow 
deed  was  ineffective  as  against  the  first  grantee  upon  the  performance  of  the 
condition.  Leiter  v.  Pike,  127  111.  287,  20  N.  E.  23  (1889),  ace.  See  Cannon  v. 
Handley,  72  Cal.  122,  13  Pac.  315  (1887) ;  Conneau  v.  Geis,  73  Cal.  176.  14  Pac. 
580,  2  Am.  St.  Rep.  785  (1887) ;  McDonald  v.  Huff,  77  CaI^_2t9;T!5Pac.  499 
(1888).  ~    ^'^ 


366  DERIVATIVE  TITLES  (Part  2 

were  to  be  made,  and  was  to  be  delivered  by  Hughes  when  the  pay- 
ments were  completedj  that  defendant  was  to  have  possession  from  the 
date  of  the  purchase;  that  on  April  12,  1906,  after  the  purchase  and 
-yj.  before  the  delivery  of  the  escrow  deed,  plaintill^Jn  an  action  of  debt 
''"^'^^J^  against  Dugan  and  wife,  attached  the  said  lots,  which  action  resulted 
A^  ^""^  I  in  judgment  against  them  on  April  25,  1906j  that  an  execution  sale  of 
JjlI*^^\  said  lots  was  had  on  June  12,  1906,  and  confirmation  thereof  was  haa 
^jff^u^Gn  June  22,  1906,  and  a  sheriff's  deed  issued  to  the  plaintiff  on  June 
27,  1907;  that  plaintiff,  at  the  time  of  the  attachment,  had  knovyledge 
of  the  contract  of  sale  and  escrow  deed,  and  on  July  15,  1906,  notified 
the  defendant  of  said  judgment  and  execution  sale,  and  demanded  that 
payment  of  the  purchase  price  be  made  tn  birn ;  that  defendant  paid  all 
the  installments  of  the  said  purchase  price  to  Hughes,  according  to  the 
agreement,  and  received  the  deed  from  him  on  or  about  September  14, 
1907.  From  these  facts  the  trial  court  found  that  plaintiff  acquired 
tlie  title  to  the  property  free  from  any  equity  of  the  defendant,  and 
rendered  judgment  accordingly,  and  the  defendant  appeals. 
Eakin,  J.  (after  stating  the  facts  as  above).  1.  The  ffrsFlnatter  for 
>  consideration  is  the  effect  of  plaintiff's  judgment  lien  and  execution  sale 
)  upon  I  defendant's  prior  possession,  under  his  purchase  and  escrow 
deed  from  Dugan  and  wife^defendant  contending  that  when  the  con- 
ditions under  which  the  escrow  deed  was  deposited  with  Hughes  were 
fulfilled,  the  deed  related  back  to,  or  took  effect  from,  the  date  of 
such  deposit,  and  thus  cut  off  the  lien  of  plaintiff's  judgment.  The  sale 
by  Dugan  to  the  defendant,  and  the  deposit  of  the  deed  with  Hughes, 
created  in  the  defendant  an  equitable  interest  in  the  property,  such 
that,  upon  full  payment  of  the  purchase  price  according  to  the  escrow 
agreement,  the  title  would  vest  at  once  in  the  grantee,  but  pending  the 
completion  of  the  purchase  by  the  full  payment  of  the  price,  the  legal 
title  to  the  property  remained  in  the  vendor  and  was  therefore  sub- 
ject to  attachment,  or  the  lien  of  a  judgment  against  the  ven^r  to 
the  extent  of  his  interest  therein.  _  Such  lien,  obtained  with  notice  of  the 
escrow  agreement,  is  subject  to  the  equity  of  the  vendee.  The  delivery 
of  the  deed  to  the  vendee  being  essential  to  pass  the  title,  the  escrow 
agreement  only  becomes  effectual  for  that  purpose  upon  the  fulfillment 
of  its  conditions.  The_general  rule  is  that  the  title  passes  to  the  vendee 
from  the  second  delivery;j_  Devlin,  Deeds,  par.  328 ;  Prutsman  v. 
Baker,  30  Wis.  644,  11  Am.  Rep.  592.  There  are  exceptions  to  this 
rule,  as  stated  in  4  Kent's  Commentaries,  454.  "Generally  an  escrow 
takes  eff'ect  from  the  second  delivery,  and  is  to  be  considered  as  the 
deed  of  the  party  from  that  time;  but  this, general  rule  does  not  apply 
when  justice  requires  a  resort  to  fiction.  _^The  relation  back  to  the  first 
delivery,  so  as  to  give  the  deed  effect  from  that  time,  is  allowed,  in 
cases  of  necessity,  to  avoid  injury  to  the  operation  of  the  deed  from 
events  happening  between  the  first  and  second  delivery.  *  *  *  But 
ifjthefiction  be  not  re^quired  for  any  such  purpose,  it  is  not  admitted, 
and  tHe  deed  operates^  according  to  the  truth  of  the  case,  from  the 


(P^ 


Ch.  2)  EXECUTION  OP  DEEDS  367 

second  delivery."  Rathmell  v.  Shirey,  60  Ohio  St.  187,  197,  53  N. 
E.  1093,  1099;  Devlin,  Deeds,  par.  328.  In  Prutsman  v.  Baker,  30 
Wis.  644,  11  Am.  Rep.  592,  it  is  said:  "This  relation  back  to  the  firjt 
delivery  is  permitted,  however,  only  in  cases  of  necessity,  and  where 
no  injustice  will  be  done,  to  avoid  injury  to  the  operation  of  the 
deed  from  events  happening  between  the  first  and  second  delivccy; 
as  if  the  grantor,  being  a  feme  sole,  should  marry,  or  whether  a  feme 
sole  or  not,  should  die  or  be  attainted,  after  the  first  and  before  the 
second  delivery,  and  so  become  incapable  of  making  a  deed  at  the  time 
of  second  delivery,  the  deed  will  be  considered  as  taking  effect  from 
the  first  delivery,  in  order  to  accomplish  the  intent  of  the  grantor, 
which.,  would  otherwise  be  defeated  by  the  intervening  incapacity. 
But  subject  only  to  this  fiction  of  relation,  in  cases  like  those  above 
supposed  and  others  of  the  kind,  and  which  is  only  allowed  to  pre- 
vail in  furtherance  of  justice,  and  where  no  injury  will  arise  to  the 
rights  of  third  parties,  the  instniment  has  no  effect  as  a  jdeed,._and_no 
title  passes  until  the  second  delivery ;  and  it  has  accordingly  been  held 
that,  if  in  the  meantime  the  c>taie  shrnild  be  levied  upon  by  a  creditor 
of  the  grantor,  he  would  hold  by  virtue  of  such  levy,  in  preference  to 
the  grantee  in  ihc  dcedj_"  Washburn,  Real  Prop.  §  2181  ;  Rathmell  v. 
Shirey,  60  Ohio  St.  187,  53  N.  E.  1098;  Jackson  v.  Rowland,  6  Wend. 
J)  667,  22  Am.  Dec.  557. 
2.>The  second  delivery  cannot  take  effect  by  relation  when  the 
Fantor  is  able  to  make,  and  the  grantee  able  to  receive,  such  second 
delivery  absolutelyl  Jackson  v.  Rowland,  6  Wend.  (N.  Y.)  667,  22 
Am.  Dec.  557.  It  is  held  in  Whitfield  v.  Harris,  48  Miss.  710,  that  this 
fiction  of  relation  will  apply  to  ward  off  the  intervening  liens  of  cred- 
itors; and  Chinn  v.  Butts,  3  Dana  (Ky.)  547,  holds  to  the  same  effect. 
But  the  weight  of  authority  is  the  other  way.     11  Am.  &  Eng.  Enc.  ^.^ 

Law  (2d  Ed.)  348,  says:  "But  it  seems  to  be  the  prevailing  rule  that.  \  /\)  C 
in  the  interval  of  time  between  the  first  and  second  delivery,  title  re-  /  \Y^'^'^'^^ 
mams  in  the  grantor,  subject  to  the  claims  of  his  creditors,  and  that    '  ,     (^ 

this  doctrine  of  relation  cannot  be  applied  for  the  purpose  of  de-    VCr^*^ 
feating  such  intervening^  claims."     This  text  is  supported  by  the  au-  J 
thorities  above  cited,  and  also  by  Wolcott  v.  Johns,  7  Colo.  App.  360, 
44  Pac.  675;  Taft  v.  Taft,  59  Mich.  185,  26  N.  W.  426,  60  Am.  Rep. 
291T  >ioyt  v.  McLagan,  87  Iowa,  746,  55  N.  W.  18. 
,    3y/4t^is  beyond  controversy  that  the  title  remains  in  the  vendormptil 
S:he  actual  delivery  of  the  deed.     The  vendor  still  has  not  only  the 
legal  title,  but  also  an  interest  in  the  property  as  security  for  the  pay- 
ment of  the  purchase  price ;   and  this  interest  should  be  and  is  avail- 
able to  a  creditor  through  the  lien  of  his  judgment,  which  lays  hold 
of  such  legal  title,  and  thereafter  payments  made  to  the  vendor  by  the 
vendee  are  at  his  peril:    Tomlinson  v.  Blackburn,  37  N.  C.  509.  ^ 
the  p.urchase  price  is  fully  paid,  although  the  deed  is  not  actually  de- 
Ii\ered,  the  vendor  having  but  the  nak^^  leyal  title,  the  judgment  cred- 
itor can  acquire  no  more:    Stannis  v.  Nicholson,  2  Or.  332;   Riddle  v. 


368 


DERIVATIVE  TITLES 


(Part  2 


Miller,  19  Or.  468,  23  Pac.  807;  Riddle's  Appeal  (Pa.)  7  Atl.  232;  Uhl 
V.  May,  5  Neb.  157;  Elwell  v.  Hitchcock,  41  Kan.  130,  21  Pac.  109. 
Reversed.*" 


^ 


/ .,  •  (fJ  '■    SCOTT.  V.  STONE. .  ' 
(Supreme  Court  of  Kansas,  1906.    72  Kan.  545,  84  Pac.  117.) 

Graves,  J.  This  was  an  action  to  recover  damages  for  a  breach 
of  the  covenants  of  a  warranty  deed.  TTTe  transaction  was  evidenced 
by  a  contract  of  sale^^ dated  April  8,  1902,  which  specified  the  subse- 
quent steps  to  be  taken  by  each  party  in  completing  the  conveyance. 
The  defendants  in  error  were  grantors,  and  the  plaintiff  in  error^^ 
grantee. 

The  contract  of  sale,  together  with  $1000  cash  paid  by  the  grantee 
upon  the  purchase-price  of  the  land,  was  placed  in  escrow  with  an 
El  Dorado  bank  to  await  the  performance  of  the  subsequent  require- 
ments of  each  party.  It  was  stipulated  that  the  grantors  should  fur- 
nish an  abstract  of  title  and  execute  a  warranty  deed  to  the  land,  and 
place  them  in  the  bank  with  the  contract,  there  to  remain  until  August 
1,  1902,  when  the  grantee  should  pay  the  remainder  of  the  purchase- 
money  and  receive  the  deed  and  aljstract  of  title.  These  conditioiis 
were  performed  by  each  party,  and  the  deed  and  abstract  of  title  were 
duly  delivered  to  the  grantee  as  stipulated. 

At  the  date  of  the  contract  of  sale  the  land  was  in  the  possession 
of  tenants.  The  cultivated  portion  was  occupied  by  one  Arnall,  and 
the  pasture-lands  by  one  Pirtle.  Arnall  paid  his  rent  to  the  grantee, 
and  Pirtle  paid  to  the  grantoci.  The  grantee  began  this  action^to  re- 
cover  damages  as  a  substitute  for  the  Pirtle  rent. 

The  case  was  tried  to  a  jury.  The  controversy  on  the  trial  was 
whether,  if  a  recovery  could  be  had  at  all,  it  should  be  for  rent  ac- 
cruing_from  the  date  of  the  contract  of  sale,  or  from  the  date  when 
the  grantee  actually  received  the  deed,  to  November  1,  1902,  when 
the  Pirtle  lease  expired,.  The  case  was  presented  to  the  jury  upon  both 
theories,  and  the  amount  returned  in  the  verdict  indicated  that  it  was 
intended  to  cover  the  longer  period.  The  court,  on  a  motion  for  a 
new  trial,  decided  that  the  finding  sli^ould  have  been  for  the  shorter 
period,  and  thereupon  offered  to  deny  the  motion  if  the  plaintiff  would 
accept  an  amount  stated,  being  the  value  of  the  rent  after  August 
1,  1902;  if  not,  the  court  indicated  that  it  would  grant  a  new  trial. 
The  plaintiff  declined  the  offer  and  the  motion  was  allowed.     *     *     * 

We  might  let  the  case  rest  here,  but,  as  a  new  trial  is  necessary 
and  the  legal  questions  involved  are  controlling,  we  deem  it  best  to 
decide  them  now,  and  thereby  save  the  parties  the  delay  and  ex- 
pense of  further  litigation  in  this  court.    The  trial  court  erred.jn  hold- 


40  See  Lord's  Oregon  Laws,  §  301. 


Ch,  2)  EXECUTION  OF  DEEDS  369 

ing  that  the  grantee  could  recover  rent  only  from  the  date  he  actuajl^ 
received  the  deed — August  2,  1902.  Where  land  is  sold  by  a  trans- 
action involving  a  contract_of  saje containing  stipulations  for  the  sub- 
sequent performance  of  specified  acts  by  each  of  the  parties,  pendi_ng 
vifhich  performance  the  contract  is  placed  in  escrow,  and  afterward 
in  compliance  with  such  escrow  the  grantor  executes  and  delivers  his 
deed,  to  be  also  held  in  escrow  with  the  contract  and  delivered  to  the 

grantee  when  payment  has  been  made  by  him  as  stipulated,  ^nd  all  the  ^ 

provisions  of  the  escrow  are  performed  and  the  deed  delivered  to  the  j).A,<,A,«^»wf 
grantee  accordingly,  such  delivery  completes  the  conveyance,  and  t he  r  ^  g  -^  . 
deed  relates  back  to  the  date  of  the  contract  of  sale  and  is  not  limited  ^OlZ^t^a^ 
to  the  date  when  actual  delivery  is  made  to  the  grantee. 

This  doctrine  of  relation  is  of  ancient  origin,  and  has  always  been 
applied,  both  at  law  and  in  equity,  to  meet  the  requirements  of  justice, 
to  protect  purchasers,  and  to  effectuate  the  intent  of  the  parties  to 
contracts.  18  Vin.  Abr.  286-293;  2  Greenl.  Cruise  on  Real  Prop. 
441  •  24  A.  &  E.  Encycl.  of  L.  275 ;  Welch  v.  Button  et  al.,  79  111. 
465 ;  Young  v.  Guy,  87  N.  Y.  457;  Sutherland  v.  Goodnow  et  al.,  108 
111.  528,  48  Am.  Rep.  560;  NelHs  v.  Lathrop,  22  Wend.  (N.  Y.)  121,' 
34  Am.  Dec.  285 ;  Thompson  v.  Spencer,  50  Cal.  532 ;  Cummings  v. 
Newell,  86  Minn.  130,  90  N.  W.  311 ;  Davis  v.  Clark,  58  Kan.  100,  48 
Pac.  563. 

It  has  been  held  that  whether  by  this  rule  of  relation  the  operation 
of  the  deed  will  be  carried  back  to  the  date  of  the  contract  of  sale,  to 
the  execution  of  the  deed,  or  only  to  its  actual  delivery  to  the  grantee, 
wjU  depend  upon  the  inteiit.ollhe  .parties  as  shown  by  the  transaction. 
1  Devlin,  Deeds  "(2d' Kd.)  §  262.  But  whatever  test  may  be  applied  to 
this  case,  the  result  will  be  the  same.  It  is  necessary  to  protect J:he 
grantee  in, the  enjoyment  of  the  property  which  he  has  bought^-iuid 
paid  for,  and  it  is  necessary  to  carry  out  the  manifest  intention  of_the 
parties  that  this  deed  should  relate  back  to  the  date  of  the  contract  of 
sale.. 

The  grantors  purchased  the  land  in  controversy  less  than  a  week 
before  the  sale  in  question.     The  grantee  paid  interest  on  Jthe  gur-   ^Vl^^-a^^-^-*** 
chase-price  from  the  date  of  the  contract.    A  vendor,  in  the  absence^ f    J)      '^^^  ^ 
express  stipulations  therefor,  cannot  receive  interest  on  the  purchase-  ^ 

price  and  the  rents  a]so.     29'A.^&  E.  Encycl.  of  L.  708;    Siemers  y .  Jl^'*-*^"-^  ^^ 
Hu1^t728  Tex.  Civ.  App.  44,  65  S.  W.  62,  66  S.  W.  115.    The  grantors 
knew  when  they  executed  the  contract  of  sale,  and  on  May  6,  1902, 
when  they  placed  their  deed  with  full  covenants  of  warranty  in  escrow, 
to  be  delivered  August  1,  1902,  that  tenants  were  on  the  land,  but  no 


reservation  or  suggestion  was  made  that  they  expected  the  rent.    Jj;   /P    «a*a>w 
must  be  presumed  that  they  intended  to  convey  by  their  deed  every    V/v,*^**^ 
right  which  its  covenants  covered. 

Placing  a  deed  in  escrow  practically  withdraws  the  land  from  the 
market,  and  renders  the  grantor  powerless  to  convey  or  encumber  it, 
Aig.Peop. — 24 


370  DERIVATIVE  TITLES  (Part  2 

so  far  as  the  vendee  is  concerned.  After  the  grantee  had  paid  the  pur- 
chase-money  in  full,  as  agreed,  including  interest  thereon  from  the 
date  of  the  contract  of  sale,  it  would  be  manifestly  unjust  to  deprive 
him  of  the  rent  conveyed  by  the  covenants  of  his  deed.  Wecon- 
clude  that  under  the  facts  and  circumstances  shown  in  this  case  the 
plaintiff  is  entitled  to  receive  rents  from  the  date  of  the  contract_of 
sale,  April  8,  1902, 

The  order  of  the  court  granting  a  new  trial^is  affirmed,  with  di- 
rection that  on  the  further  trial  the  views  herein  expressed  be  fol- 
lowed.   All  the  Justices  concurrmg.** 


BAKER  V.  SNAVELY. 

(Supreme  Court  of  Kansas,  1011.     84  Kan.  170,  114  Pac.  370.) 

Smith,  J.  William  Weisiger  was  the  record  ownjf.  of  the  lots^in 
question;^  On  the  6th  day  of  November,  1901,  one  Clarence  Ford  ob- 
tained a  tax  deed  to  the  lots,  and  his  right  thereto  was  conveyed_^to 
John  Baker,  who  subsequently,  and  on  the  5th  day  of  October,  1.905, 
brought  this  action  in  the  district  court  of  Finney  county  to  quiet  Jiis 
title  to  the  lots  against  Weisiger  and  wife  and  others.  Service  was 
made  by  publication.  On  the  21st  day  of  November,  1905,  judgment: 
was  rendered  in  favor  of  the  plaintiff  quieting  his  title. 

On  March  3,  1906,  Weisiger  and  wife  filed  their  motion  and  affidavit 
to  open  the  judgment,  and  also  filed  an  answer  to  the  petition  of  Baker, 
in  which  they  made  a  general  denial  of  ,the  allegationsof.  the  petition, 
and,  for  a  second  defense,  alleged  that  tlie  tax  deed  upon  which  the 
plaintiff  based  his  title  was  null  and  void.  On  April  21^  1906,  the  nio- 
tion  to  open  the  judgment  was  allowed. 

September  22,  1906,  the  Weisigers  filed  a  motion  to  make  S.  C. 
Thompson  a  party  defendant,  which  motion  was  sustained  November 
30,  1906,  and  summons  served  on  Thompson  on  December  2,  1906. 
Permission  was  also  given  the  Weisigers,  on  November  30,  1906,  to 
file  an  amended  answer  and  cross-petition,  in  which,  in  addition  to  the 
allegations  of  the  former  answer,  they  alleged  that  defendant  Thomp- 
son  j)urchased  the  property  in  controversy,  X)n  or  about Jh£..31  st  dayjif 
MaVch,  1906,  from  Noah  B.  MatkinSj  to  whom  the  plaintiff,  John 
Baker,  on  the  same  day  had  conveyed  the  property;  that  both  trans- 
fers were  made  with  the  full  knowledge  of -the  interest  of  the  ^Vei>i- 
gers  in  the  property,  and  were  made  for  the  purpose  of  defrauding  thepi 
out  of  their  interest  therein,  and  that  such  transfers  were  null  and_void 
^against  them. 

41  Cf.  Oliver  v.  Mowat,  PA  U.  C.  Q.  B.  472  (1874),  where  the  grantor,  between 
the  time  the  deed  was  handed  to  the  depositaiy  and  the  performance  of  the 
condition,  was  allowed  to  distrain  for  rent 


-J 


■^1 


Ch.  2)  EXECUTION   OF   DEEDS  371 

On  August  23,  1907,  by  leave  of  court  and  with  the  consent  of  tlie 
WeisigerS,  Thompson  filed  an  answer  in  which  he  admitted  that  he 
claimed  an  interest  in  the  property,  and  made  a  general  denial  to  the 
allegations  of  the  cross-petition,  alleging,  in  substance,  that  he  pur- 
chased the  premises  from  Noah  B.  Matkins  on  the  10th  of  January, 
1906;  that  Matkins  executed  a  warranty  deed  conveying  the  premises 
to  him ;  that  at  that  time  he  was  actually  occupying  the  premises,  and 
has  ever  since  continued  in  the  possession  thereof ;  that  he  purchased 
the  property  in  good  faith,  after  taking  legal  advice  that  the  title  to  the 
premises  was  in  Noah  B.  Matkins,  and  after  being  advised  by  counsel 
that  the  title  to  the  property  had  been  quieted  in  the  action  of  John 
Baker  against  Mary  H.  Suavely  et  al. ;  that  he  made  a  payment  on  the 
property,  and  took  it  subject  to  a  mortgage  for  $1650,  which  he  had 
since  paid  off  and  discharged ;  that  at  the  time  of  the  purchase  he  had 
no  notice  of  any  claims  by  defendant  William  Weisiger,  and  bought 
the  property  in  good  faith ;  that  the  tax  deed  in  question  was  recorded 
in  the  office  of  the  register  of  deeds,  of  Finney  county  on  the  7th  of 
November,  1901,  that  five  years  had  expired  after  the  recording  of  the 
deed  prior  to  any  pleading  filed  by  defendant  Weisiger  against  lliis 
defendant;  and  that  tlie  action,  as  to  him,  was  barred  by  .the  five-year 
statute  oTlimitation. 

Trial  was  had  before  Charles  E.  Lobdell,  judge  pro  tern.,  and  the 
following  findings  of  fact  and  conclusions  of  law  were  made : 

"Findings  of  Fact. 

"(1)  That  the  defendant,  Weisiger,  is  the  owner  of  the  fee_or  patent 
title  to  the  property  in  controversy,  unless  such  title  is  extinguishedjjy 
the  tax  deed  to  Baker  or  by  the  judgment  heretofore  rendered  in  this 
case  and  subsequent  conveyances  which  are  claimed  to  have  been  ac- 
cepted  in  good  faith  and  in  faith  of  such  judgni^nt. 

"(2)  That  on  November  21,  1905,  the  plaintiff,  John  Baker,  obtained 
judgment  in  this  court  and  in  this  cause  quieting  title  in  him  to  the 
land  in  controversy  against  the  defendants,  Weisigers. 

"(3)  That  on  November  28,  1905,  John  Baker  executed  a  sufficient 
deed  of  general  warranty  to  the  property  in  controversy  to  Noah  B. 
Matkins  and  placed  the  same  in  escrow  for  future  delivery  with  G.  L. 
Miller. 

"(4)  That  on  March  3,  1906,  the  defendants,  William  Weisiger  and 
wife,  file^,  in.,  this  court  their  motion,  in  proper  form,  to  open  up  the 
judgment  thereinbefore  ronderedjn  favor  of  Baker  as  recitedjn  find- 
ing No.  2. 

"(^JTliat  thereafter,  and  on  April  21,  1906,  by  the  consideration  of 
this  court  such  decree  and  judgment  was  fully  set  aside  and  open- 
ed  u£^ 

"^  That  on  March  31,  1906,  the  deed  from  Baker  to  Matkins  was, 
by  Miller,  delivered  to  Matkins. 


372 


DERIVATIVE  TITLES 


(Part  2 


^ 


"(7)  That  on  February  19,  1906,  Noah  B.  Matkins,  a  single  man, 
executed  a  sufficient  warranty  deed  to  the  property  in  controversy  to 
the  defendant  S.  C.  Thompson,  which  deed  was  placed  in  escrow  with 
G7  L.  Miller,  as  was  the  deed  from  Baker  to  Alatkms. 

"(8)  That  on  tlie  same  date  that  the  deed  from  Baker  to  Matkins 
was  deHvered  by  Miller  the  deed  from  Matkins  to  Thompson  was  by 
Miller  delivered  to  Thompson. 

^^"That^TEompson  took  possession  of  the  property  in  controversy 
on  January  6,  1906,  and  has  been  continuously  in  possession  since  that 
timg. 

'  "(10)  That  the  title  of  Baker  at  the  Jime  of_his_ludgment  rested 
upon  the  tax  deed  introduced  in  evidence. 

"XTl)  That  a  part  of  the  consideration  for  the  tax  deed  on  which 
Baker's  title  rested  was  what  was  known  as  'current  university  tax/ 
levied  for  the  year  1896. 

"(12)  That  tlie  so-called  redemption  notice  for  the  lots  in  contro- 
versy, published  by  the  county  treasurer  of  Finney  county,  contained 
in  the  amount  stated  as  necessary  to  the  redemption  of  said  lots  the 
sum  of  thirty-five  cents  as  costs  for^advertising-,  and  included-it.  for 
each  of  the  tjiree  years  embraced  in  the  noticejiecessary  to  redeem,  ^nd 
that  the  treasurer's  fee  of  twenty-five  cents  was  also  included  in  the 
notice  for  each 


"Conclusions  of  Law. 

"(1)  That  the  tax  deed  to  Baker J§.  vnidahip  and  should  be  set  aside 
because  of  the  facts  stated  in  findings  11  and  12. 

"(2)  That  the  creation  of  the  escraaLjadth  reference  _to  the  deeds 
from  Baker  to  Matkins  and  MatkiTic;  tn  Thnmp'^nn  wa^;  nnt  in  ^,w 
delivery  of  the  deeds. 

"(3)  That  the  delivery  of  such  deeds,  which  actually  took  place  on 
March  31,  1906,  caiijaotbemad^Jo.  relate  _back_s^  to  relieve  Thonip- 
son  and^Iatkina^Qi  the.effe£EjQiJh5.nQti££jiii2pen.up4^  which 

motion  was  filed  before  the  escrow  was  terminated. 

"(4)  That  at  the  time  of  the  delivery  of  their  deeds  to  them  Matkins 
and  Thompson  had  jconstructive  notice,  ^yhich  was  binding  upon^tlTjem, 
of  the  motion  tlien  filed  and  pending  in  this  cause  to  open  up  and  va- 
cate the  judgment,  and  that  neither  of  them  was  a  purchaser  in  good 
faith  and  inJaith  af  such  jiidgm^niJ' 

The  contention  of  the  appellees  is  that  the  deed  from  Baker  and 
wife  to  Matkins  did  not  become  a  conveyance  of  the  property  until  tlie 
actual  delivery  thereof  on  the  31st  of  March,  1906,  that  the  deed  from 
Matkins  to  Thompson  did  not  become  an  actual  conveyance  until  the 
same  date,  and  that  Thompson  had  constructive  notice  of  the  pendency 
of  the  action  before  the  deed  was  delivered  to  him. 

Upon  the  other  hand,  the  ^appdl^it  contends  that  both  the_  deed 
from  Baker  to  Matkins  and  the  deed  from  Matkins  to  him  were_ex- 
ecuted  long  before  the  motion  to  reopen Jhe  judgment  was  filed,  on 


\ri^ 


Ch.  2)  EXECUTION  OF  DEEDS  373 

March  3,  1906.;  that  the  considerations  therefore  were  paid  in  part 
at  the  time  of  the  execution  of  the  contracts,  and  the  remainder  in  full 
when  the  deeds  were  dehvered,  on  March  31,  1906;  that  they  were  in 
escrow  wi^Miller  frprn  the  time  of  their  execution  until  their  actual 
deUveix  and  that  when  the  actual  delivery  was  made,  on  March_31j 
1906,  the  delivery  dated  back  to  the  time  of  the  original  contracts  and 
partial  payments.  These  adverse  contentions  constitute  the  only  sub- 
stantial question_in  the  case. 

Whether  a  deed  executed  and  placed  in  escrow  relates  back  to  the  . 

time  of  the  contract  and  execution  thereof,  so  as  to  vest  the  grantee ^Ojug[,^„X-*.<r^ 
with  the  full  title  from  that  time,  or  whether  it  becomes  such  convey-  ^_    7 

ance  only  upon  the  full  performance  of  the  conditions,  seems  to  de-   ^f^"'^       • 
pend  upon  which  of  Jhe  two  theories  will  proniote^ justice  under  all     /v*-o-^    « 
the  circumstances  of  the  individual  case. 

"This  doctrine  of  relation  (from  the  time  of  the  second  delivery  to 
the  time  of  the  delivery  in  escrow)  is  of  ancient  origin,  and  has  always 
been  applied,  both  ^ Jaw  a.n,d-m.  .equily»Jj3  mj^gt  thejieauirenieiit^.^ 
justice,  to  protect _£urchasers,  and  to  eitectuateAe  intent  of  th£_paxties 
tfTcontracts.'^  "T^cott  v."  Stone".  72T;;anT  5457  548,  84  Pac.  117,  118,  cit- 
ing numerous  cases. 

The  syllabus  in  that  case  states  the  rule  strongly,  without  exception, 
and  holds  that,  under  the  circumstances  of  that  case,  the  delivery  dated 
back  to  the  time  of  making  the  contract.  The  same  doctrine  was  up- 
held in  Davis  v.  Clark,  58  Kan.  100,  48  Pac.  563.  In  each  of  those 
cases  justice  clearly  reg^U2red_  that  the  conveyance  be  held  as  of  the 
date  of  the  delivery  in  escrow  and  not  as  of  the  date_of  the  second  de- 
livery. 

In  a  case  similar  to  this.  Hill  v.  Miller,  84  Kan.  196,  198,  113  Pac. 
1043,  as  between  the  rights  of  a  purchaser  from  a  tax-deed  holder  and 
the  holder  of  the  patent  title,  who  had  brought  an  action  to  set  aside  a 
decree  quieting  the  title,  it  was  said : 

"At  all  events  he  (the  purchaser)  was  not  protected  by  the  statute 
unless  lie  bou_ght  and  paid  for  the  land  prior  to  January  18,  19QS,_tiie 
late  when  the  proceeding  wa&.l>£g-un  to  spt  R'iide  the  dea:££,^i]if;ting 


No  finding  is  made  by  the  court  in  this  case  in  regard  to  any  pay- 
ment made'  by  the  appellant  prior  to  the  delivery  of  the  deed  from  the 
party  holding  it  in  escrow,  which  was  twenty-eight  days  after  the  filing 
of  the  motion  to  set  aside  the  judgment.  Nor  does  the  appellant  dis- 
close in  his  evidence  how  much  he  paid  toward  the  purchase  price,  at 
or  prior  to  the  time  of  the  execution  of  the  deed.  The  evidence  is  that 
he  made  a  payment.  According  to  the  evidence,  he  purchased  seven- 
teen lots  for  $3500,  nearly  $206  per  lot,  and  assumed  the  payment  of  a 
mortgage  for  $1650,  which  he  afterward  paid,  leaving  $1850,  upon 
which  "a  payment"  was  made  at  the  time  of  purchase,  and  the  remain- 
der March  31,  1906.  The  three  lots  involved  in  this  action  would,  at 
the  price,  amount  to  about  $618,  leaving  over  $1200,  less  such  payment 


374  DERIVATIVE  TITLES  (Part  2 

as  he  may  have  made,  and  the  amount  of  which  he  does  not  disclose, 
to  protect  himself  against  any  failure  of  title.  He  was  bound  to  take 
notice,  at  the^tipis  Jie  actually  received  his  deed  and  made  final  pay- 
ment,  of  the  proceeding  to  vacate  the  judgment  quieting  the  title,  and, 
as  he  has  failed  to  show  that  he  was  unable  to  protect  himself  from  any 
loss,  if  the  title  to  the  lots  should  eventually  be  shown  to  be  in  the 
appellees,  there  is  no  reason  for  holding  that  the  second  delivery  of  tlie 
deed  related  back  to  the  time  it  was  delivered  in  escrow. 

On  the  other  hand,  the  invalidity  of  the  tax  deed  is  not  contested, 
and  the  appellees'  equities  in  the  case  are  very  strong.  We  think  the 
court  correctly  decided  the  case.  We  have  not  considered  various 
other  assignments  of  error,  as  it  seems  to  be  conceded  that  ifie  case 
must  turn  upon  this  one  question.    The  judgment  is  affirmecL*^ J 

*2..B^kman  made  a  deed  of  certain  premises  lo  CorKgnd  delivered  same  to 

esteilo  as  an  escrow^  to  ljej]en\eretl_9v*^t-tQ  ("orl  iijiopMip  l;itrei-s  execiiflDn 

of  a  iiiortgajre  on  the  premises  to  Beekniiin  and  the  deposit  of  tlie  sniiie^th 

^  Westerlo.     Corl  made  a  deed  of  the  hiiid.s  to  Frost.     Corl  then  executed  tlie 

Z/  mortfia^'e  to  lieekmaii,  and  upon  delivering  same  to  Westerlo  received  the  deed 

to  tlie  premises,     rs'either  Heekman  nor  Frost  had  any  actual  notice.     Ht'ekmaa 

having  advertised  the  i>iemlses  for  sale  under  the  provisions  ofTTie  niortgajie, 

Frost  sued  to  eujoiu  such  action.    The  opiuion  of  Mr.  Chancellor  Keut  iu  part 

;j^    Is  as  follows: 

"This  case  has  led  to  the  discnission  of  several  important  questions.     (1)  The 

first  in  order  is,  whether  the  deed  from  Heekman  to  Coil  was  duly  delivered, 

and  at  what  time,  so  as  to  pass  the  estate.    The  deed  must  he  taken  to  have 

been  duly  delivered  from  the  time  it  was  handed  to  Corl  hy  Westerlo,  with 

_  whom  it  had  been  deposited  as  an  escrow.     *     *     ♦     Every  deed  takes  effect 

4jU*  /^«  from  the  delivery]   and  the  reasonable  infereneg  from  the  fi^fiisMctioii.  is  to  tuu- 

slcier  the  deed  as  operarnig  onl.T-fl'Ohi  the  liTue  of  the  |)eiforiiiaine  uf  the  cou- 

{  gition.  and  the  actual  delivery  to  tne  grantee^    This  is  the  Veneral  rule,  as  stat- 

£^^^   «<<,~c</       ed  by  rerkins  (sect.  l.'iS,)  and  u  is  only  to  be  controverted  when  justice  reipiires 

.^  a  resort  to  fiction.     In  Kutler  and  Haker's  case,  W  Co.  85,  b,  :i(i,  a  (151U),  it  was 

'^  /\  -  resolved,  and  the  law  had.  indeed,  been  so  understood  loim  before.  (Hro.  tit. 

Non  est  Factum,  pi.  5,)  that  a  dcn-d  delivered  as  an  escrow,  aiid  afterwards 

./^  to  the  grantee,  shall  relate  back  to  tlie  tirsi  drli\<'i-y,  \\\w\\  that  iclalinn  is  iiec- 

.,.v-,  I   '  •"  ^sary  lU  glvy  ertect  ro  the  deed,  as  if  the  gt-antor,  liein.i;  a  feme  sole,„.aiii)ulJ 

y  nyarry,  or  ii  tlie  i;raiitoi-,  whether  a  feme  sole  or  not,  sliouUl  die  betweeij^the 

f  (  n--e  ''  first  and  second  delivery;    but  that,  in  other  eases,  as  wliere  it  would  avoid  a 

lease,  it  SllilU  not  have  ITiat  relation,  but  shall  onerate  according  to  the  truth 

of  the  case  from  the  second  deliver^v.     The  fiction  of  carrying  the  deed  back 

by  reianon  is  resorted  to  from  necessity,  to  prevent  injury,  and  to  uphold  the 

deed  ;   or,  as  it  is  exi)ressed  in  the  case  from  Coke,  'in  such  case  for  necessity, 

-  •  /       and  ut  res  raagis  valeat  quam  pereat,  to  this  intent,  by  fiction  of  law,  it  shall 

J^piA.         ^^  ^  f^t'ed  ab  initio,  and  yet  in  truth  it  was  not  his  deed  until  the  second  de- 

"^ ^  livery.'     In  that  case  it  was  likewise  resolved  that,  as  to  collateral  acts,  there 

;':    should  be  no  such  relation  at  all.     Iji  the  present  case,  there  is  no  necessity 


was  recorded  in  July,  1805.  If  the  question  was  between  Corl  and  the  per- 
sons to  whom  he  sold,  the  deecfought  to  relate  pacK,  so  as  to  give  effect  to  bis 
intermediary  grants,  and  prevent  him  from  defeatin^g  thein.  'j'his  is  the  amo u n t 
of 'the  doctrine  in  Jacksoii  v.  Bull.'l  Johns.  Cas.  {.V.  Y.)  81  (1790).  Hut  here  is 
a  struggle  between  innocent  persons,  to  avoid  a  loss,  and  we  ought  not  to  resort 
to  Hction  to  heln  one  against  tlie  other.     Tlie  transaction  must  be  left  to  Test 


upon  Its  simple  and  naked  truth."     Frost  v.  Beekiuah,  I  Jobxis.  Ch.  (KTY.)  288 
(fST?j: 


See  Ames,  Cases  on  Trusts  (2d  Ed.)  287-289. 


Ch.  2)  j         EXECUTION  OF  DEEDS  375 

-i-^        THOMPSON  V.  LEACII. 

(Courts  of  Common  rieas,  King's  Bench,  House  of  Lords,  1C91.    2  Vent.  198.) 

In  an  ejectment  by  Thomas  Thompson  against  Sir  Simon  Leach  and 
divers  other  defendants,  upon  the  demise  of  Charles  Leach,  of  the 
manor  of  Bulkworthy,  and  divers  messuages,  lands  and  tenements. 
Upon  not  guilty  pleaded,  a  special  verdict  was  found  to  this  effect, 
That  Nicholas  Leach  was  seised  in  fee  of  the  said  manors,  lands  and 
tenements  in' the  declaration;  and  by  his  last  will  in  writing,  bearing 
date  the  9th  day  of  December,  in  the  19th  year  of  the  reign  of  the  late 
King  Charles  the  Second,  devised  the  premises  to  his  brother  Simon 
Leach  for  life,  remainder  to  the  first  son  of  the  body  of  the  said  Simon, 
andjthe  heirs  males  of  the  body  of  such  first  son,  and  in  like  manner 
to  the  second,  third  son.  Sec.  and  for  want  of  issue  of  the  said  Simon 
Leach,  the  remainder_to  Sir  Simon  Leach  and  the  heirs  males  of  his 
body;  and  for  default  of  such  issue,  to  the  right  heirs  of  Nicholas  the 


testator  for  ever;  and  that  the  said  Nicholas  died  seised  of  the  prem- 
ises, and  after  his  decease  the  said  Simon  Leach  entred  and  became 
seised  for  life,  with  remainders  over,  as  aforesaid;^  and  being  so  seised 
made  a  deed,  bearing  date  the  23d  of  August,  in  the  25th  year  of  the 
rei^n  of  the  said  King  Charles,  sealed  and  delivered  to  the  use  of  the 
said  Sir  Simon  Leach  (but  he  was  not  present)  which  deed  the  verdict 
sets  forth  in  haec  verba ;  and  by  it  he  granted  and  surrendered  to  the 
said  Sir  Simon  Leach,  his  heirs  and  assigns,  the  said  manor  and  prem- 
ises, the  reversion,  and  reversions,  remainder  and  remainders  of  the 
same ;  to  have  and  to  hold  the  same  to  the  said  Sir  Simon  Leach  and 
his  heirs,  to  the  use  of  him  and  his  heirs:  and  they  find  that  the  said 
Charles  Leach,  lessorof  the  plaintiff,  the  first  son  of  the  said  Sir 
S imonXeacTTwas  born  the  first  of  November,  in  the  25th~year  of  th^ 
reign  of  tbp  c;atd  King  Charles,  and  not  before ;  and  that  Simon  Leach, 
from  the  time  of  his  sealing  the  deed  to  the  25th  of  May,  in  the  30th 
year  of  the  said  King  Charles,  continued  possessed  of  the  premises. 
and  that  then,  and  not  before.  Sir  Simon  Leach  accepted  and  agreed 
tp  the  said  surrender,  and  entred  into  the  premises;  and  that  after- 
wards  the  said  Simon  Leach,  brother  of  the  said  Nicholas  the  testator, 
died,  and  the  said  Charles  Leach  his  son,  after  his  decease  entred iaiQ 
the  premises,  ancTBemised  them  to  the  plaintiff,  who  by  virtue  thereof 
entred  and  became  possessed,  and  so  continued  till  the  said  Sir  Sjmon 
Leach  and  the^other  defendants,  by  his  command,  elected  him.  But 
whether  upon  the  whole  matter,  the  said  Simon  Leach  did  surrender 
the  said  manor  and  premises  to  the  said  Sir  Simon  Leach,  before  the 
said  Charles  Leach  was  born ;  and  if  he  did  not  surrender  before  the 
birth  of  the  said  Charles  Leach,  then  they  find  the  defendants  guilty; 
and  if  he  did  surrender  them  before  the  birth,  then  they  find  for  the 
defendants. 


376  DERIVATIVE  TITLES  (Part  2 

And   PoLLExFEN,  Chief  Justice,   PowELL  and  RokEby,  were  of 

opinion  that  here  was  no  surrender  till  such  time  as  Sir  SimonJ_,each 
had  notice  of  the  deed  of  surrender^  and  agreed  to  it,  and  so  the  re- 
mainder was  vested  in  Charles  the  son ;  and  it  was  not  defeated  bjjhe 
agreement  of  Sir  Simon,  after  his  birth,  to  the  surrender. 

But  V'extris  differed,  and  his  argument  was  as  followeth: 
-  Upon  this  record  the  case  is  no  more  than  thus;  Simon  Leach,  ten- 
ant for  life,  remainder  to  his  first  son,  remainder  in  tail  to  Sir  Simon 
Leach.  Simon  Leach  before  the  birth  of  that  son,  by  deed,  sealed_and 
delivered  to  the  use  of  _Sir  Simon,  (^butv^ti  his  absence  and  without  hi^ 
noting)  surrenders  his  estate  to  Sir  Simon,  and  continues  the  posses- 
sion until  after  the  birth  of  his  son;  and  then  Sir  Smion  Leach  agrees 
to  the  surrender,  whether  this  surrender  shall  be  taken  as  a  good  and 
effectual  surrender  before  tlie  son  born? 

There  are  two  points  which  have  been  spoken  to  in  this  case  at  the 
Bar. 

Firstj  whether  by  the  sealing  of  the  deed  of  surrender  the  estaje 
immediately  passed  to  Sir  Simon  Leach?  for  then  the  contingent  re- 
mainder could  not  vest  in  the  after-born  son,  there  being  no  estate  left 
in  Simon  Leach  his  father  to  support  it? 

Secondly,  whether  after  the  assent  of  Sir  Simon  Leach,  tho'  it  were 
given  af  tor  the  birth  of  the  son,  doth  not  so  relate  as  to  make  it  a  sur- 
ren_d£r  jrom_the  sealing  of  the  deed,  an^  thereby  defeat  the  remainder 
which  before  such  assent  was  vested^  in  the  son_? 

I  think  these  points  include  all  that  is  material  in  the  case,  and  I 
shall  speak  to  the  second  point,  because  I  would  rid  it  out  of  the  case. 
For  as  to  that  point  I  conceive,  that  if  it  be  admitted,  that  the  estate  for 
life  continued  in  Simon_Leach  till 'tFe^ssent"or  Sir  Simon,  thatjhe 
remainder  being  vested  in  Charles  the  seconcTscE^elore  such  assent, 
there  can  be  no  relation  that  shall  devest  it. 

I  do  not  go  upon  the  general  rule,  that  relations  shall  not  do  wrong 
to  strangers.  'Tis  true,  relations  are  fictions  in  law,  which  are  always 
accompanied  with  equity. 

But  'tis  as  true,  that  there _is_sometimesJoss  and  damage  to  third 
persons  consequent  upon  thernj  jDUt  then  'tis  what  tlie  law  ca.]Is__^m- 
num  absque"mjuriaj_ which  is  a  known  and  stated  difference  in  the  law, 
as  my.  brother  Pemberton  urged  it.  But  I  think  there  needs  nothing 
of  that  to  be  considered  in  this  point 

But  the  reason  which  I  go  upon  is,  that  the  relation  here,  letit  j>e 
never  so  strong,  cannot  hurt  or  disturb  the  rejnainder  m  Charles  Lea.ch 
in  this  case;  for  that  the  remainder  is  in  him  by  a  jtiLLe-aatecedent  and 
paramount  to  the  deed  of  surrenxier.  to  which  the  assent  of  Sir  Simon 
Leach  re.Iates,,  so  that  it  plainly  over-reaches  the  relation. 

If  an  estate  in  remainder,  or  otherwise,  ariseth  to  one  upon  a  contin- 
gency or  a  power  reserved  upon  a  fine  or  feoffment  to  uses,  when  the 
estate  is  once  raised  or  vested  it  relates  to  the  fine  or  feoffment,  as  if  it 
were  immediately  limited  thereupon,  1  Co.,  133,  156.    So  this  remain- 


Ch.  2)  EXECUTION  OF   DEEDS  377 

tier  when  vested  in  Charles,  he  is  in  immediately  by  the  will,  and  out 
of  danger  of  his  remainder  being  devested  byjmy  act  done  since,  as 
the  surrender  is. 

I  will  put  one  case,  I  think  full  to  this  matter,  and  so  dismiss  this 
point. 

It  cannot  be  denied,  but  that  there  is  as  strong  a  relation  upon  a  dis- 
agreement to  an  estate,  as  upon  an  agreement,  where  the  estate  was 
conveyed  without  the  notice  of  him  that  afterwards  agrees  or  dis- 
agrees; if  the  husband  discontinues  the  wife's  estate,  and  then  the 
discontinuee  conveyes  the  estate  back  to  the  wife  in  the  absence  of  the 
husband,  who  (as  soon  as  he  knows  of  it)  disagrees  to  the  estate,  this 
shall  not  take  away  the  remitter  which  the  law  wrought  upon  the  first 
taking  the  estate  from  the  discontinuee.  And  so  is  Litt.  cap.  Remitter. 
Co.  1  Inst.  356  b.  The  true  reason  is,  because  she  is  in  of  a  title  par- 
amount to  the  conveyance  to  which  the  disagreement  relates,  tho'  that 
indeed  was  the  foundation  of  the  remitter,  which  by  the  disagreement 
might  seem  to  be  avoided.  This  therefore  I  take  to  be  a  stronger  case 
than  that  at  the  Bar :  |  so  that  if  there  weTe"no  surfehder  before  the 
birth  of  Charles  the  son,  there  can  be  none  after  by  any  construction 
ofla\v:    for  that  wnnlH  he  in  ^voidance  of  an  estate  settled  by  a  title 


antecedent  to  such  .surrender^  whereas  relations  are  to  avoid  mesne 
acts ;  and  I  believe  there  can  be  no  case  put  upon  relations  that  go  any 
further,  and  it  would  be  against  all  reason  if  it  should  be  otherwise. 

But  as  to  the  first  point.  I  am  of  opinion,  that  upon  the  making  of 
the  deed__of  surrender,  the  freehold  and  estate  of  Simon  Leach  did 
immediately  vest  in  Sir  Simon^^  before  he  had  notice,  or  gave  any  ex- 
press  consent  to  it ;  and  so  it  was  a  surrender  before  Charles  was  born, 
and  then  the  contingent  remainder  could  never  vest  in  him,  there  being 
no  particular  estate  to  support  it. 

A  surrender  is  a  particular  sort  of  conveyance  that  works  by  the 
common  law.  And  it  has  been  agreed,  and  I  think  I  can  make  it  plain- 
ly  appear,  that  conveyances  at  the  common  law  do  immediately  (upon 
the  execution  of  them  on'  the  s^rantor's  part)  devest  the  estate  outpf 
him^_^n(l  put  it  in  the  party  to  whom  such  conveyance  is  made^^  though . 
in  his  absence,  or  without  his  notice,  till  some  disagreement  to  such 
estate  appears.  I  speak  of  conveyances  at  the  common  law ;  for  I  shall 
say  nothing  of  conveyances  that  work  upon  the  Statute  of  Uses,  or  of 
conveyances  by  custom,  as  surrenders  of  copyholds,  or  the  like,  as 
being  guided  by  the  particular  penning  of  statutes,  and  by  custom  and 
usage,  and  matters  altogether  foreign  to  the  case  in  question. 

In  conveyances  that  are  by  the  common  law,  sometimgg  a  deed  is 
sufficient  (and  in  surrenders  sometimes  words  without  a  deed)  without 
further  circumstance  or  ceremony;  and  sometimes  a  further  act  is 
requisi^  to  give  them  effect,  as  livery  of  seisin,  attornment,  and  some- 
times  entry  of  the  part^as  in  case  of  exchanges ;  and  as  well  in  those 
conveyances  that  require  a  deed  only,  as  those  which  require  some  fur- 
ther act  to  perfect  them,  so  soon  as  they  are  executed  on  the  grantor's 


378  DERIVATIVE  TITLES  (Part  2 

part,  they  immediately  pass  the  estate.  In  case  of  a  deed  of  feoffi-nent 
to  divers  persons,  and  livery  made  to  one  feoffee  in  the  absence  of  the 
rest,  the  estat^e  vests  in  them  all  till  dissent,'  2  Leon.  23,  Mutton's  Case. 
An"d  so  223,~an  estate  made  to  a  feme  covert  by  livery,  vests  injier 
beforeaiw  agreement  of'the  husbancl,Tro.  1  inst.  356a.  So  of  a  grant 
of  a  reversion  after  attornment  of  the  lessee,  passeth  the  freehold  by 
the  deed,  Co.  1  Inst.  49a;  Litt.  sect.  66.  In  case  of  a  lease,  the  leasee 
hath  right  immediately  to  have  the  tenements  by  force  of  the  lease. 
So  in  the  case  of  limitation  of  remainders  and  of  devises,  (which  tho'  a 
conveyance  introduced  bv  the  statute,  yet  operates  accordrng  to  the 
common  law)  the  freehold  passeth  to  the  devisee  before  notice  or  as- 
sent^ I  do  not  cite  authorities,  which  are  plentiful  enough  in  these 
matters,  because  they  that  have  argued  for  the  plaintiff  have  in  a  man- 
ner agreed,  that  in  conveyances  at  the  common  law,  generally  the  estate 
passeth  to  the  partv.  till  he  devests  it  bv  some  disagreement. 

But  'tis  objected,  that  in  case  of  surrenders,  an  express  assent  of  the 
surrendree  is  a  circumstance  requisite ;  as  attornment  to  a  grant  of  a 
reversion,  livery  to  a  feoffment,  or  execution  by  entry,  in  case  of  an 
exchange. 

To  which  I  answer,  that  an  assent  i?  not  only  a  circumstance,  but 
'tis  essential  to  all  conveyances;  for  they  are  contracts,  actus  contra 
actum,  which  necessarily  suppose  the  assent  of  all  parties :  but  this  is 
not  at  all  to  be  compared  with  such  collateral  acts  or  circumstances, 
that  by  the  positive  law  are  made  the  effectual  parts  of  a  conveyance; 
as  attornment,  livery,  or  the  like ;  for  the  as'^ent  nf  the  pnrty  thaj_takes. 
is  impliedjn  all  conveyances,  and  this  is  by  intendment  of  law,  which  is 
as  stron^as  the  expression  of  the  party,  till  the  contrary  appears; 
stabit  p'sumptio  donee  probetur  in  contranum. 

But  to  make  this  thing  clear,  my  Lord  Coke  in  his  first  Institutes, 
fol.  50,  where  he  gives  instances  of  conveyances  that  work  without 
livery,  or  further  circumstance  or  ceremony,  puts  the  cases  of  lease 
and  release,  confirmation,  devise  and  surrenders,  amongst  the  rest; 
whereas  if  an  express  assent  of  the  surrendree  were  a  circumstance  to 
make  it  effectual  sure  he  would  have  mentioned  it.  and  not  marshall'd 
it  with  such  conveyances,  as  I  have  shewn  before  need  no  such  assent, 
nor  anv  thing  further  than  a  deed. 

The  case  of  exchanges  has  been  put  as  an  instance  of  a  conveyance 
at  law,  that  doth  not  work  immediately ;  but  that  can't  be  compared  to 
the  case  in  question,  but  stands  upon  its  particular  reasons ;  for  there 
must  be  a  mutual  express  consent,  because  in  exchanges  there  must  be 
a  reciprocal  grant,  as  appears  by  Littleton. 

Having,  I  hope,  made  out  (and  much  more  might  have  been  added, 
but  that  I  find  it  has  been  agreed)  that  conveyances  work  immediately 
upon  the  execution  of  them  on  the  part  of  him  that  makes  them.  I 
wilLnow  endeavor  to  shew  the  reasons,  why  they  do  so^  immediately 
vest  the  estate  in  the  party  without  any  express  consent ;  and  to  shew 
that  these  reasons  do  hold  as  strongly  in  case  of  surrenders,  as  of  any 


Ch.  2)  EXECUTION  OP  DEEDS  379 

other  conveyances  at  law;  and  they  consider  the  inconveniences  and 
ill  consequences  that  have  been  objected,  would  ensue,  if  surrenders 
should  operate  without  an  express  consent ;  and  to  shew,  that  the  same 
are  to  be  objected  as  to  all  other  conveyances,  and  that  very  odd  con- 
sequences and  inconveniences  would  follow,  if  surrenders  should  not 
operate  without  an  express  consent  of  the  surrendree ;  and  then  shall 
endeavour  to  answer  the  arguments  that  have  been  made  on  the  other 
side,  from  the  putting  of  cases  of  surrenders  in  the  books,  which  are 
generally  mentioned  to  be  with  mutual  assent,  and  from  the  manner 
of  pleading  of  surrenders.  ^^ 

The  reasons  why  conveyances  do  devest  the  estate  out  of  the  grantor  (j\ju^.^t..fry^ 
before  aay  express  assent  or  perhaps  notice  of  the  grantee,  I  conceive 
to  be  these  three  :  "  ^ 

Fjrst^  because  there  is  a  strong  intendment  of  law,  that  for  a  man  to  (^  J 
take  an  estate  it  is  for  his  benefit,  and  no  man  can  be  supposed  to  be 
unwilling  to  that  which  is  for  his  advantaee.  1  Rep.  44.  Wiiere  an  act 
is  done  for  a  man's  benefit  an_agreemern  is  implied,  till  there  be  a  dis- 
agreement.  This  does  not  only  hold  in  conveyances,  but  in  the  gift 
of  goo^s,  3  Co.  26.  A  grant  of  goods  vests  the  property  in  the  grantee 
before  notice.  So  of  things  in  action ;  a  bond  is  sealed  and  delivered 
to  a  man's  use,  who  dies  before  notice,  his  executors  may  bring  an 
action.  Dyer,  167.  An  estate  niadejlg^a  feme  covert  vests  injierjim- 
mediately,  tij^i  the  husband  disagrees.  So  in  my  Lord  Hobart,  204,  in 
Swain  and  Holman's  Case.  Now  is  there  not  the  same  presumption 
and  appearance  of  benefit  to  him  in  reversion  in  case  of  a  surrender  ? 
Is  it  not  a  palpable  advantage  to  him  to  determine  the  parVicuTar  estate, 
and  to  reduce  his  estate  into  possession?  And  therefore,  why  should 
not  his  assent  be  implied,  as  well  as  in  other  conveyances?  ^^-^ 

Secondly,  a  second  reason  is,  because  it  would  seem  incongruous  and  (^ ^ 
absuTcT,  TTTa!  when  a  conveyance  is  compleatly  executed  on  the  grantor's 
part,  yet  notwithstandinfi  the  estate  should  continue  in  hirn.  The 
words  of  my  Lord  Coke  (1  Inst.  227a.)  are,  that  it  cannot  stand  with 
any  reason,  that  a  freehold  should  remain  in  a  man  against  his  own 
livery  when  there  is  a  person  able  to  take  it.  There  needs  only  a  capaci- 
*Xl2J^'l^J^'s  will  to  take  is  intended.  Why  should  it  not  seem  as  un- 
reasonable, that  the  estate  should  remain  in  Simon  Leach,  against  his 
own  deed  of  surrender?  For  in  case  of  &  surrender,  a  deed,  and  some- 
times  words  without  a  deed,  are  as  effectual  as  a  livery  in  case  of  a 
feoffment. 

Thirdly,  the  third  and  principal  reason,  as  I  take  it,  why  the  law 
will  not  suffer  the  operation  of  a  conveyance  to  be  in  suspence,  and  to 
expect  the  agreement  of  the  party  to  whom  'twas  made,  is  Jo  prevent 
the  uncertainty  of  the  freehold.  This  I  take  to  be  the  great  reason  why 
a  freehold  cannot  be  granted  in  futuro,  because  that  it  would  be  very 
hard  and  inconvenient  that  a  man  should  be  driven  to  bring  his  praecipe 
or  real  action  first  against  the  grantor,  and  after  he  had  proceeded  in 
it  a  considerable  time,  it  should  abate  by  the  transferring  the  freehold 


380  DERIVATIVE  TITLES  (Part  2 

to  a  stranger,  by  reason  of  his  agreement  to  some  conveyance  made  be- 
fore the  writ  brought;  for  otherwise  there  is  nothing  in  the  nature  of 
the  thing  against  conveying  a  freehold  in  futuro;  for  a  rent  de  novo 
may  be  so  granted ;  because  that  being  newly  created,  there  can  be  no 
precedent  right  to  bring  any  real  action  for  it.    Palmer,  29,  30. 

Now  in  this  case,  suppose  a  praecipe  had  been  brought  against  Simon 
Leach,  this  should  have  proceeded,  and  he  could  not  have  pleaded  in 
abatement  till  Sir  Simon  Leach  had  assented ;  and  after  a  long  progress 
in  the  suit  he  might  have  pleaded,  that  Sir  Simon  Leach  assented  puis 
darrein  continuance,  and  defeated  all.  So  that  the  same  inconvenience, 
astothe  bringing  of  real  actions,  holds  in  surrenders,  as  in  other  con- 
veyances. 

And  to  shew  that  it  is  not  a  slight  matter,  but  what  the  law  much 
considers,  and  is  very  careful  to  have  the  freehold  fixed,  and  will  never 
suffer  it  to  be  in  abeyance,  or  under  such  imcertainty,  as  a  stranger  that 
demands  right  should  not  know  where  to  fix  his  action. 

A  multitude  of  cases  might  be  cited ;  but  I  will  cite  only  a  case  put  1 
Hen.  VL  2  a,  because  it  seems  something  of  a  singular  nature,  lord 
and  villain,  mortgagor  and  mortgagee,  may  be  both  made  tenants. 

But  it  will  be  said  here,  tliat  if  a  praecipe  had  been  brought  against 
Sir  Simon  Leach,  might  not  he  have  pleaded  this  disagreement,  and  so 
abated  the  writ  by  nontenure  ? 

'Tis  true ;  but  that  inconvenience  had  been  no  more  than  in  all  other 
cases,  a  plea  of  non-tenure;  and  it  must  have  abated  immediately;  for 
he  could  not  have  abated  it  by  any  dissent  after  he  had  answered  to 
the  writ.  Whereas  I  have  shewn  it  in  tlie  other  case,  it  may  be  after 
a  long  progress  in  the  suit. 

Again,  it's  very  improbable  that  he  should  dissent;  whereas  on  the 
other  side,  an  assent  is  the  likeliest  thing  in  the  world ;  so  tlie  mischief 
to  the  demandant  is  not  near  so  great,  nor  the  hundredth  part  so  proba- 
ble. 

Now  I  come  to  consider  those  inconveniences  that  have  been  urged 
that  would  ensue,  if  a  surrender  should  work  immediately. 

It  has  been  said,  that  a  tenant  for  life  might  make  such  deed  of  sur- 
render, and  continue  in  possession,  and  suffer  a  recovery;  and  this 
might  destroy  a  great  many  recoveries,  and  overthrow  marriage-settle- 
ments, and  defeat  charges  and  securities  upon  his  estate  after  such 
deed  of  surrender. 

These,  and  a  great  many  more  such  like  mischiefs,  may  be  .instanced 
in  surrenders  1  but  they  hold  no  less  in  any  other  conveyance s^^ whereby 
a  man  may  (as  hath  been  shewed  before)  devest  himself  of  the  estate, 
and  yet  continue  the  possession ;  and  in  this  case  the  assent  of  the  sur- 
rendree,  tho'  he  doth  not  enter,  would  (as  it  is  urged  of  all  hands)  vest 
the  estate  in  him,  Hutton,  95 ;  Br.  tit.  Surrender,  50 ;  tho'  he  cannot 
have  trespass  before  entry,  and  that  assent  might  be  kept  as  private, 
and  let  in  all  the  mischiefs  before  mentioned  as  if  no  such  assent  were 
necessary. 


Ch.  2)  EXECUTION   OF  DEEDS  381 

And  this  I  think  sufficient  to  answer  to  the  inconveniences  objected 
on  that  side.  / 

Now  let  us^ee__what  inconveniences  and  odd  consequences  would 
follow,  in  case  a  smrender  could  not  operate  till  the  express  assent  of 
the  surrendree.  therTno  surrender  could  be  to  an  infant  at  least,  when 
under  the  age  of  discretion ;  for  if  it  be  a  necessary  circumstance,  it 
cannot  be  dispensed  with  no  more  than  livery  or  attornment.  So  tho" 
an  infant  of  a  year  old  is  capable  to  take  an  estate,  because  for  his 
benefit  he  could  not  take  a  particular  estate,  upon  which  he  had  a  re- 
version immediately  expectant,  because  it  must  enure  by  surrender. 
If  there  be  jointenants  in  reversion,  a  surrender  to  one  of  them  enures 
to  both.  1  Inst.  192^_214  a.  so  there,  as  to  one  moiety,  it  operates  with- 
out assent  or  notice. 

Suppose  tenant  for  life  should  make  livery  upon  a  grant  of  his  estate 
to  him  in  reversion  and  two  others,  and  the  livery  is  made  to  the  other 
two  in  the  absence,  and  without  the  notice  of  him  in  reversion,  should 
the  livery  not  work  immediately  for  a  third  part  of  the  estate?  andjf^it 
doth,  it  must  enure  as  a  surrender  for  a  third  part.  So  Ts  Bro.  tit. 
Surrender,  and  3  Co.  76. 

If  tenant  for  life  should  by  lease  and  release  convey  the  lands  held 
by  him  for  life,  together  with  other  lands  to  him  in  reversion  who 
knows  nothing  of  the  sealing  of  the  deed ;  should  this  pass  the  other 
lands  presently,  and  the  lands  held  for  life  not  till  after  an  express 
assent,  because  as  to  those  lands  it  must  work  as  a  surrender  ?    Plainly  , 

an  express  assent  is  not  necessary.     For  if  the  grantee  enters,  this  is  ^ 

sufSr.ipnt. 

I  come  in  the  last  place  to  answer  those  arguments  that  have  been 
made  from  the  manner  of  putting  the  case  of  surrenders  in  the  books, 
and  the  form  of  pleading  surrenders.    Co.  1  Inst.  ZZ7  b. 

First,  a  surrender  is  a  vielding  up  of  the  estate,  which  drowns  by  yLixy^/yjLtr^ 
rnutual  agreement  between  them.     Tenant  for  life,  by  agreement  of  .    n     ^y   *■     j 
him  in  reversion,  surrenders  to  him ;  he  hath  a  freehold  before  he  en-     OiMf^*-'*^'^^ 
ters.    And  so  Perkins,  in  putting  the  case  of  a  surrender,  mentions  an 
agreement ;  and  divers  other  books  have  been  cited  to  the  same  purpose. 

To  all  which  I  answer : 

No  doubt  but  an  agreement  is  necessary.    But  the  question  is,  wheth-  p       *       -^ 
er  an  agreement  is  not  intended  where  a  deed  of  surrender  is  made  in    .    >*^*^    -'^ 
the  absence  of  him  in  the  reversion ?  whether  the  law  shall  not  suppose        C-^t-c-f  * 
an  assent,  till  a  disagreement  appears: 

Indeed,  if  he  were  present,  he  must  agree  or  disagree  immediately 
and  so  'tis  in  all  other  conveyances.  The  cases  put  in  Perkins,  sect.  607, 
608,  609,  are  all  of  surrenders  made  to  the  lessor  in  person ;  for  thus 
he  puts  them :  the  lessee  comes  to  the  lessor,  and  the  lessee  saith  to  the 
lessor,  I  surrender,  saith  he,  if  the  lessor  doth  not  agree,  'tis  void; 
car  il  ne  poit  surrender  a  luy  maugre  son  dents.  And  that  is  certainly 
so  in  surrenders,  and^ll  othfr  rnriY(^vances.;.i.o£.a^man  cannoL 
estate"put  mto  him  mspight  of  hij 


382  DERIVATIVE  TITLES  (Part  2 

But  I  cannot  find  anyof  the  books  cited  that  come  to  this  point,  that 
whereV_deed  oi  surrender  is  executed^ without  the  notice  of  him  in  re- 
versionT^at  it  slialLpass  hoTHing  till  he  consents  l_so  that  It  cannot  ^e 
said,  that  there  is  any  express  authority  in  the  case. 

Now,  as  to  the  form  of  pleading  of  a  surrender,  it  has  been  objected, 
that  a  surrender  is  always  pleaded  with  acceptance ;  and  many  cases 
have  been  cited  of  such  pleadings,  Rastal's  Entries,  176,  177 ;  Fitzh.  tit. 
Barre,  262,  which  are  cases  in  actions  of  debt  for  rent,  and  the  de- 
fendant in  bar  pleads,  that  he  surrendered  before  the  rent  grew  due, 
and  shews,  that  the  plaintiff  accepted  the  surrender;  so  in  waste 
brought,  a  surrender  pleaded  with  the  agreement  of  the  plaintiff. 

These  and  the  like  cases  have  been  very  materially,  and  I  think  fully 
answered  at  the  Bar  by  my  Brother  Pemberton ;  that  those  actions  be- 
ing in  disaffirmance  of  the  surrender,  and  implying  a  disagreement, 
the  defendant  had  no  way  to  bar  and  avoid  such  disagreement,  but  by 
shewing  an  express  agreement  before. 

The  case  of  Peto  and  Pemberton  in  3  Cro.  101,  that  has  been  so  often 
cited,  is  of  the  same  sort :  in  a  replevin  the  avowry  was  for  a  rent- 
charge;  in  bar  of  which  'tis  pleaded,  that  the  plaintiff  demised  the  land 
out  of  which  the  rent  issued,  to  the  avowant.  The  avowant  replies, 
that  he  surrendered  dimissionem  praed.  to  which  the  plaintiff  agreed. 
This  is  the  same  with  pleading  in  bar  to  an  action  of  debt  for  rent; 
but  when  the  action  is  in  pursuance  of  tlie  surrender,  then  it  is  not 
pleaded. 

So  is  Rast.  Entries,  136.  The  lessee  brought  an  action  of  covenant 
against  the  lessor,  for  entering  upon  him,  and  ousting  6t  him.^~The 
defendant  pleads  a  surrender  in  bar,  and  that  without  any  agreement 
or_jLcceptance^ 

In  Fitzherbert,  tit.  Debt,  149,  where  the  case  is  in  an  action  of  debt 
for  rent,  the  defendant  pleaded  in  bar,  that  he  surrendered,  by  force 
of  which  the  plaintiff  became  seised :  there  is  no  mention  of  plead- 
ing any  agreement,  notwithstanding  that  the  action  was  in  disaffirm- 
ance of  the  surrender. 

Therefore  as  to  the  argument  which  has  been  drawn  against  tlie  form 
of  pleading,  I  say,  that  if  an  agreement  be  necessary  to  be  pleaded: 
then,  I  say. 

First,  that  'tis  answered  by  an  implied  assent,  as  well  as  an  express 
assent.  I  would  put  the  case  f^uppose  a  lessee  for  life  should  make 
a  lease  for  years,  reserving  rent;  and  in  debt  for  the  rent  the  lessee 
should  plead,  that  the  plaintiff  before  the  rent  grew  due  surrendered 
to  him  in  reversion,  and  he  accepted  it,  and  issue  is  upon  the  accept- 
ance; and  at  the  trial  it  is  proved,  that  the  plaintiff  had  executed  a 
deed  of  surrender  (as  in  this  case)  to  him  in  reversion  in  his  absence; 
would  not  this_turn  the  Prg_9f_upon  the  plaintiff ,_thaliie  in  reversion 
disagreed  to  this  surrender?  for  surelynhis  agreement  is^  prima  facie 
presuroed^-and  then  the  rule  is,  stabit  prsesumptio  donee  probetur  in 
contrariuin. 


Ch.  2)  EXECUTION   OF   DEEDS  383 

Again,  I  say  it  appears  by  the  cases  cited  that  it  is  not  always  plead- 
ed and  when  pleaded  'tis  upon  a  special  reason,  as  1  have  shewn  be- 
fore, i.  e.  to  conclude  the  party  from  disagreeing;  and  it  would  be 
very  hard  to  prove  in  reason,  that  an  agreement  (admitting  an  express 
assent  to  be  necessary)  must  be  pleaded;  for  if  it  were  a  necessary 
circumstance  to  the  conveyance,  why  then  'tis  implied  in  pleading 
sursumreddidit ;    for  it  cannot  be  a  surrender  without  it. 

In  pleading  of  a  feoffment  it  is  enough  to  say  feoffavit,  for  that 
implies  livery ;    for  it  cannot  be  a  feoffment  without  it. 

Now  why  should  not  sursumreddidit  imply  all  necessary  requisites, 
as  well  as  feoffavit?  and  therefore  I  do  not  see  that  any  great  argu- 
ment can  be  drawn  from  the  pleading.    For, 

1.  It  is  not  always  to  be  pleaded. 

2.  It  cannot  be  made  out  to  be  necessary  so  to  plead  it:  f^T  j^  ^'^- 
sent  be  a  necessary  requisite,  then  'tis  miplied  by  saying  sursunire.d - 
didit,  as  livery  is  in  feoffavit :  and  then  to  add  the  words  of  express 
consent  is  as  superfluous,  as  to  shew  livery  after  saving  feoft'avit. 

And  again,  if  it  v>^ere  always  necessary,  it  is  sufficiently  answered 
by  an  assent  intended  in  law :  for  presumptions  of  law  stand  as  strong 
till  the^ontrary  appears,  as  an  express  declaration  of  the  party. 

NoTTv.  A  writ  of  error  was  brought  in  tlie~King's  Bench  upon  this 
judgment  and  it  was  there  affirmed  by  the  unanimous  consent  of  the 
whole  Court. 

Memorand.  Anno  quarto  Willielmi  &  Mariae:  this  case  was 
brought  by  writ  of  error  into  the  House  of  Lords,  and  the  judgment 
was  there  rgYersgdjipon  the  reasons  m  the  aforesaid  argument.*^ 

43  See  Standing  v.  Bowring,  L.  R.  31  Ch.  D.  2S2  (1S85) ;  Mallott  v.  Wilson, 
[190:{|  2  Ch.  AOL  J, 

/—■ •*Tt~i.s  true,  that  judges  have  said,  with  more  solemnity  than  I  think  the  occa-  --^-«-^ 
/sion  wjirraiitiHl.  that  no  one  cnu  linve  an  testate  thrust  ui.oii  liim  againstJijs 
vvUl,  and  that,  eniis.M|uciit ly  a  dclivci-y  of  a  dct'd  to  a  st  i-a.u.L-'or,  for  the  us(>  of 
the  graiiteo,  is  of  no  crfcct,  until  assented  to  iiy  the  latter.  How  uuieh  weTiHit 
this  ar.yunient  is  entitled  to,  may  be  judi^ed  of  Ij.v  the  fact  that  estates  are  every 
day  thrust  u|ion  people  by  last  will  and  testament;  and  it  would  certainly 
sound  somewhat  novel  to  say  that  the  de\ises  were  of  no  effect  until  assented 
to  hy  the  devisees.  Ifji  /ather  should  die  testate,  devisiui^  an  estate  to  liis 
dau^diter,  and  the  latter  snouTTTaTterwa  rd  die  witliout  a  knowiedjie' of_jQie 
will,  it  would  ha  Idly  he  contended  tiiat  the  devise  heeanje  void  for  want  pf  Mf- 
ceptance,  and  tliat  the  heiis  of  the  devisee  nnist  lose  rhe  estate.  Neither  will 
it  be  detned  that  eciuitahle  estates  are  every  day  thrust  upon  people  liy  deeds, 
or  assijiuments,  made  in  ti'ust  foi-  their  benefit,  nor  will  it  be  said  thatsuch 
beneticiaries  take  nothing'  until  they  ass^yj.  Add  to  these  the  esiati's  tliat  are 
tlu-ust  upon  i)eople  by  the  statute  of  des-cent,  and  we  bej:in  to  estimate  the  value 
of  the  argument,  that  a  man  sliall  not  he  made  a  property  holder  against  liis 
■will,  and  tliat  courts  slionid  he  astute  to  shield  him  from  such  a  wrong.  It  is 
certainly  true,  as  a  genejaJ  rtde.  that  acceptance,  by  the  Ljrantee,  is  necessary 
to  constitute  a  good  delivery,  for  a  man  may  refuse  even  a  'sWl^  Kut  that  such 
acce]»tance  need  not  lie  manual  is  e(]ually  ti'ue,  and  it  is  also  certain  that  suu- 
plejyissent  to  the  conveyance,  given  even  befoi-e  its  (-xi-eution,  is  a  sulliciji]jt 
acceptance.  Thus,  where  a  vendee  had  fully  paid  for  the  land  and  was  entitled 
t6"a  conveyance,  and  liis  vendor,  witliout  his  knowle<lge,  executed  tiie  deed  and 
delivered  it  to  a  stranger,  not  of  the  vendee's  ai)pointraent,  for  tlie  use  of  the 
latter,  it  was  held  that  the  delivery  was  sufficient,  and  the  deed  tools  effect 


DERIVATIVE  TITLES 


(Part  2 


w 

^ 


WELCH  V.  SACKETT. 

(Supreme  Court  of  Wisconsin,  1860.     12  Wis.  243.) 

ixoN,  C.  J.**  *  *  *  fhe  question  which  was  considered  by 
far  the  most  important,  and  upon  which  the  counsel  bestowed  the  most 
attention,  citing  nearly  all  the  English  and  American  authorities,  calls 
for  the  determination,  in  a  case  where  a  mortgage  of_personal  prop- 
^l^ty  fr^pi  a  '^'"1^^'^^^  creditor  is  executed  in  the  absence  and  without 
the  knowledge  of  the  latter,  and  delivered  to  a  stranger  for  hiFUse, 
of  the  time  at  which  the  title  to  tlie  property  mortgaged  vests  iri^the 


immediately,  although  the  vendee  was  wholly  ignorant  of  what  was  do 
ChurcTi  V.  <;ilnian,  15  TTeiKl.  fN.  Y.)  G56  T^D  Am.  DVeV  S2  (1836)]. *' gojoT' 


dQpe, 
afents^ 


for  the  iiublic  lands  are  held  to  take  effect  as  soon  us  issued,  though  they  may 
never  ctJiue  to  the  grantee's  liauds,  and  were  issued  without  any  specific  appli- 
•-cation. J'or  thenj.     I'.ut  the  cases  go  still  further,  and,  upon  the  soundest  rea- 
-/sous,  hold  that  where  a  grant  is  plainly  beneficial  to  the  grantee,  his  accept- 
•"pT  IjaiKv  of  it  is  to  be  presumed  in  the  absence  of  proof  to  the  contrary.     It  is  ar- 

^"giied,  liowever,  that  this  is  only  a  rule  of  evidence,  and  that  where  the  proofs 
show  that  the  grantee  has  never  had  any  knowledge  of  the  conveyance  the 
presiunption  is  rebutted.  If  this  ai'gument  were  limited  to  cases  in  which  an 
acceptance  of  the  grant  would  impose  some  obligation  upon  the  grantee,  I  am 
not  prepared  to  say  that  I  would  object  to  it,  although  the  obligation  mighty 
fall  far  short  of  the  value  of  the  grant.  '  But  where  the  grant  is  a  pureT. 
aualifie±-gift.  I  ■thinly  th^  true  rule  is  tbat  the  presumption  of  acceptance  can 
be  rebutted  only  by  proof  of  dissent ;  and  it  matters  not  that  the  grantee  never 
/  knew  of  tlu'  conveyance,  for  as  his  assent  is  presumed  from  its  beneficial  cliar- 

acter,  the  presumption  can  be  overthrown  only  by  proof  that  he  did  know^f 
and  rejected  it.  If  this  is  not  so,  how  can  a  deed  be  made  to  an  infant 
such  tender  years  as  to  be  incapable  of  assent?  Is  it  the  law,  that  if  a  father 
make  a  deed  or  gift  to  his  infant  child,  and  deliver  it  to  the  recorder  to  be 
recorded  for  the  use  of  the  child,  and  to  vest  the  estate  in  it,  the  deed  is  of  no 
effect  until  the  child  grow  to  years  of  intelligence  and  give  its  consent?  Max 
the  estate,  in  the  meantime,  be  taken  for  the  subsequently  contracted  debts 
of  the  father,  or  will  the  statute  of  limitations  begin  to  run  in  favor  of  a  tres- 
passer, upon  the  idea  that  the  title  remains  in  the  adult?  Or,  will  the  con- 
veyance entirely  fail,  if  either  grantor  or  grantee  die  before  the  latter  assent? 
I  do  not  so  understand  the  law.  In  such  a  case,  the  acceptance  of  the  grantee 
is  a  presiunption  of  law,  nminCT  t4i4aa,^the  beneficial  nature  6t 't!l(?  "grant,  and 
not  a  mere  presCTniptToh  oTa^Q^-ai^tual^^cgglirra^^^  And  tor  lliy  Bum's  ryUl^on 
thai:  the'lffw'm^es"the"presuniptionrTr^es"'not  aliow^  be  disproved  by  any 
thing  short  of  actual  dissent.  I  am  fully  aware  thatTBSSeTte'U'S  may  seem  op- 
posed  to  many  decided  cases)  but  they  are  fully  sustained  by  others  that  stand, 
in  our  judgment,  upon  a  more  solid  foundation  of  reason.  The  strict ness__pf 
the. ancient  doctrine,  in  respect  to  the  delivery  of  deeds,  has  i^radnally  worn 
a^-ay.  until  a.doctrine'mdre  consistent  with  reason  antl  the  habits  of  the  pres- 
ent  genera'tion  now"  prevails'.'  Snider  Y."^ackenour,  37  N.  C.  SCO  [SS^^im.  I5ec. 
685  (1842)1 ;  J^UingtCH  v.'(Jurrie,  40  N.  C.  21  (1847)  Church  v.  Gilman,  15  Wend. 
(N.  Y.)  656  [30  Am.  Dec.  82  (1836)] ;  Tate  v.  Tate,  21  N.  C.  26  (1834) ;  Morrow 
V.  Alexander,  24  N.  C.  392  (1842).  It  remains  to  be  considered,  whether  the 
deed  in  question  was  of  that  beneficial  nature  to  the  grantee,  as  to  give  rise  to 
the  presimiption  of  which  I  have  spoken.  Upon  its  face  it  purports  to  be  for 
a  pecuniary  consideration  paid  to  the  grantor.  Prima  facie,  therefore,  it  was 
neither  a  gift  nor  advancement.  But  the  proof  satisfies  us  that  the  grantor 
never  received,  or  expected  any  pecuniary  consideration  for  it.  If  he  intend- 
ed that  his  daughter  should  have  the  land,  he  intended  it  as  a  gift.  I  have 
already  said  that  upon  the  testimony  we  feel  bound  to  say  that  he  did  intend 
to  convey  it  to  her,  and  we  must  therefore  consider  the  deed  as  a  gift.     Ap- 

**  The  statement  of  facts  and  portions  of  the  opinion  are  omitted. 


Ch,  2)  EXECUTION   OF   DEEDS  385 

mortgagee,  as  between  himand  another  cxedit  or  of  the  mortgagqrjvho 
acc^uiredTan^TnterestTmit.  by  attachment^betweenjtlie  time  of  the  de- 
livery  to_the  stranger  and  thf  time  whenjhe  mortgagee  actually  re- 
ceived  notice  of  and  accepted  it.  Whilst  it  must  be  admitted  that  there 
irsome  conflict  in  the  adjudications  upon  this  subject,  still  both  natural 
reason  and  the  weight  of  authority  tend  to  the  same  conclusion,  which 
is,  \that  the  title  in  such  case  only  vests  from  the  time  there  is  an  ac- 
ceptance in  fact  on  the  part  of  the  mortgagee.  On  principle  J  think 
it  may  be  laid  down  as  an  indubitable  proposition  in  such  case,  jthat  the 
title  does  not  vest  in  fact  until  the  mortgagee  has  actually  assented  to 
the  conveyance;  and  consequently,  that  until  such  assent  it  remains 
in.  the  mortgagor.  While  all  the  courts  acknowledge  the  correctness 
of  principles  which  lead  unerringly  to  this  result,  and  clearly  and  posi- 
tively exclude  any  other,  it  is  somewhat  strange  that  any  should  have 
been  found  to  adopt  a  conclusion  directly  opposed  to  it.  All  agree  that 
it  is  necessary  to  the  validitv  of  everv  deed  or  conveyance,  that  there 
be  a  grantee  who  is  not  only  willing,  but  who  does Jnjact  accept  it.  It 
is  a  contract,  a  parting  with  property  on  the  part  of  the  grantor,  and 
an  acceptance  of  it  by  the  grantee.  Like  every  other  contract,  there 
must  be  a  meeting  of  the  minds  of  the  contracting  p_arties^.ll]e  on^ 
to  sell  and  convey,  and  the  other  to  purchase  and  receive,  before  the 
agreement  is  consummated^.  If  there  be  anything  in  legal  principles, 
or  m  common  sense,  it  is  an  unpardonable  absurdity  to  say,  that  a 
contract  can  be  completed  in  the  absence  and  utter  ignorance  of  one 
of  the  contracting  parties j_^  that  he  can  or  does,  under  such  circum- 
stances, assent  to,  or  agree  to  become  bound  by  it.  The  idea  that  a 
contract  could  be  thus  made,  and  that  title  to  property  could  pass  into 
a  party  without  his  knowledge  or  consent,  and  out  of  him  without 
any  motion  or  act  of  his  signifying  his  willingness,  but  merely  by  his 
refusal  to  receive  it  at  all,  had  its  origin  at  a  period  in  the  history  of 
the  common  law,  when  the  legal  mind,  instead  of  being  governed  in 
its  conclusions  by  a  steady  application  of  the  clear  and  rational  prin- 
ciples of  the  law  to  plain  matter  of  fact^  and  by  arguments  to  be  drawn 
therefrom,  was  too  frequently  influencecLby  a  mysterious  and  fanci- 
ful logic,  that  depended  for  its  support  upon  artfully  devised  fictions 
and  falsehoods,  vvhich  for  the  most  part  were  as  reiuignant  to  reason 
as  they  were  unnecessary  to  the  proper  administration  of  jusJLi^g. 
The  discovery  that  such  things  could  be  done,  is,  I  believe,  attributa- 

plying,  then,  the  pripciples  we  have  recognized,  the  titlp  vested  in  Ellen  Shan- 
non when  Owen"  Shannon  causpd  the  deed  to  be  recorded.  She  was  seized  of 
it  during  her  intermarriasre  with  the  lessor  of  the  plaintiff,  there  was  issue  of 
the  marriage,  and  she  died  before  the  commencement  of  this  suit.  According 
to  the  decision  in  Borland's  Lessee  v.  Marshall,  2  Ohio  St.  308  (1853),  t_he  les- 
ror  of  the  plaintiff  hern  me  tennnt  by  the  curtesy,  evenifjth..e  lands  were  ad- 
^rseiy  held  dniiii-  the  cov(M-tnre^  It  fnllowaJlint  Hip  plaintifF  is  entitlejL^ 
judgni'eiit."  Mitchell  v.  Kyaii.  suiirn,  p.  2r)7.  See,  also.  Derry  Bank  v.  Webster, 
44'?r"rTr!J64  (1862),  where  the  deed  contained  a  provision  placing  a  burden  up- 
on the  grantee. 

Aig.PrOp. — 25 


386  DERIVATIVE  TITLES  (Part  2 

ble  to  the  inventive  skill  of  Justice  Ventris,  as  exhibited  in  the  case 
of  Thompson  v.  Leach,  2  Vent.  198,  decided  about  the  year  1690;  at 
^  '  least  several  courts  and  judges  since  that^time,  with  many  compliments, 
^  have  agreed  in  giving  him  the  credit  of  having  proved  something  on 
/this  subject  which  none  oi_  them  could  understand.  The  substance 
(  of  his  proposition  is,  that  a  ^eed  of  lands  made  to  a  party,  without  his 
J  knowledge  or  consent,  and  placed  in  the  hands  of  a  third  person  for 
\  his  use,  is  a  medium  for  the  transmission  of  the  title  to  the  grantee, 
and  takes  effect  so  as  to  vest  it  in  him,  the  instant  the  deed  is  parted 
with  by  tlie  grantor,  and  if  the  grantee,  upon  receiving  knowledge  of 
it,  rejects  it,  such  rejection  has  the  effect  of  revesting  the  title  in  the 
\  grantor  by  a  species  of  remitter.  Inasmuch  as  this  is  the  only  attempt 
at  sustaining  it  by  argument  to  be  found  in  the  books,  the  more  recent 
cases  having,  without  discussion,  gone  off  almost  entirely  on  the 
strength  of  the  authorities,  I  propose  to  examine  some  of  tlie  positions 
assumed  by  him,  upon  which  his  argument  mainly  depends,  and  from 
which,  I  think,  its  fallacy  and  the  incorrectness  of  his  conclusions  will 
be  clearly  made  to  appear.  He  admits,  what  is  universally  conceded 
to  be  an  indispensable  element  of  ever}^  grant,  namely,  that  it  shoujd 
be  accepted  by  the  grantee,  and  says,  "that  an  assent  is  not  only  a 
circumstance,  but  it  is  essential  to  all  conveyances ;  for  they  are  con- 
tracts, actus  contra  actum,  which  necessarily  suppose  the  assent  of  all 
parties ;"  but  avoids  the  difficulty  into  which  the  admission  of  this 
well  settled  principle  brings  him,  by  saying,  "that  because  there  is  a 
strong  intendment  of  law,  that  for  a  man  to  take  an  estate  is  for  his 
bgnefit,  and  no  man  can  be  supposed  to  bejinwilling  to  that  whioh  is 
for  his  advantage,"  therefore  the  law  will  presume  that  the  grantee 
has  accepted  a  conveyance  before  a  knowledge  of  its  execution  and 
delivery  has  come  to  him.  Upon  the  foundation  of  this  hypothesis, 
misnamed  by  him  a  presumption  of  law,  tlie  falsity  and  unreasonable- 
ness of  which  are  so  self-evident  that  reasoning  can  hardly  make  them 
plainer,  he  proceeds  to  the  erection  of  his  superstructure.  Assent  or 
acceptance  on  the  part  of  the  grantee  or  other  party  to  a  deed  or  other 
instrument,  by  means  of  which  the  title  to  property,  whether  real  or 
personal,  is  to  be  transferred  to  him,  or  by  which  he  is  in  any  other 
manner  to  become  bound,  is  a  fact,  the  truth  of  which  is  to  be  establish- 
ed by  competent  evidence,  before  such  deed  or  other  instrument  can  be 
adjudged  to  have  a  legal  existence.  Like  every  other  fact,  it  may  be 
established  by  direct  evidence,  or  its  existence  may  be  inferred  or  pre- 
sumed from  other  facts  already  in  proof.  But  I  deny  that  the  ex- 
istence of  one  fact  is  to  be  inferred  or  presumed  from  the  existence 
of  others,  when  the  connection  between  the  former  and  the  latter  is 
such  that  according  to  the  course  of  nature  it  plainly  appears  that  the 
former  cannot  exist.  In  other  words,  I  deny  that  the  existence  of  any 
fact  may  be  shown  by  proving  others  which  conclusively  show  its  non- 
existence, or  that  the  legitimate  mode  of  establishing  the  truth  of  a 
matter  is  by  indubitably  proving  its  falsehood.     Justice  does  not  re- 


Ch.  2)  EXECUTION  OF   DEEDS  387 

quire,  nor  does  the  law  tolerate  such  an  absurdity.  The  learned  jus- 
tice says,  that  where  a  deed  is  executed  by  the  grantor  and  delivered 
to  a  stranger  for  the  use  of  the  grantee,  without  the  previous  advice, 
direction  or  authority  of  the  grantee,  and  without  his  knowledge,  the 
law  will  presume  that  the  grantee  assents  to  it,  the  moment  it  is  deliv- 
ered to  the  stranger.  Assent  is  an  act  of  the  mind— that  intelligent 
power  in  man  by  which  he  conceives,  reasons  and  judges,  and  of  which 
it  is  a  primary,  invariable  and  most  familiar  law  that  it  cannot  act 
with  reference  to  external  objects,  until,  through  the  medium  of  the 
senses,  it  is  impressed  with  or  knows  their  existence.  Hence,  with- 
out such  impression  or  knowledge,  there  can  be  no  assent,  no  actus 
contra  actum,  and  to  presume  it  in  opposition  to  the  facts,  is  to  pre- 
sume that  which  is  impossible;  which  the  law,  the  rules  and  precepts 
of  which  are  m  conformity  with  the  unchanging  truths  of  nature,  will 
never  do. 

"J^  presumption."  says  Mr.  Starkie.  "may  be  defined  tn  he  .^n  infer- 
ence as  to  the  existence  of  one  fact,  from  the  existence  of  some  other 
fact,  founded  upon  a  previous  experience  of  their  connection.  To 
constitute  such  a  presumption,  it  is  necessary  that  there  be  a  previous 
experience  of  the  connection  between  the  known  and  inferred  facts, 
of  such  a  nature  that  as  soon  as  the  existence  of  the  one  is  established, 
admitted  or  assumed,  the  inference  as  to  the  existence  of  the  other  im- 
mediately arises,  independently  of  any  reasoning  upon  the  subject." 
Presnmptinns  thus  defined,  he  says  are  either  legal  and  artificial  qt 
natural,  and  may  be  divided  into  three  classes.  1st.  Legal  presump-_ 
tions  made  by  the  law  itself^  or  presumptions  of  mere  law!  2d.  Legal 
presumptions  made  by  a_  jjjry,  ..pr._presumptions  of  law  and  fact.  3d. 
Mere  natural  presumptions,  or  presumptions  of  mere  fact.  The  defini- 
tion which  he  so  clearly  and  accurately  gives,  although  applied  by  him 
to  all  presumptions,  is  perhaps  more  strictly  applicable  to  the  latter 
class.  The  assent  to  a  deed  or  other  instrument  by  the  grantee  or  other 
party,  being  a  matter  of  mere  fact,  it  is  obvious  that  to  the  latter  class 
also  would  belong  a  presumption  in  relation  to  such  assent,  in  a  case 
where  such  presumption  could  properly  be  indulged.  But,  whether  the 
presumption  be  assigned  to  the  one  or  the  other  of  these  classes,  the 
position  of  the  learned  justice  is  equally  untenable;  for  in  no  instance, 
not  even  the  most  artificial  and  arbitrary,  does  the  law  indulge  in 
presumptions  which  are_directlj_contradicted  by  the  farts  on  which 
they  are  predicated.  The  known  facts,  though  often  insufficient  of 
their  own  natural  force  and  efficacy,  to  generate  in  the  mind  a  con- 
viction or  belief  of  those  which  are  inferred,  are  always,  to  say  the 
least,  not  inconsistent  with  or  opposed  to  them.  If  for  example  we 
take  the  case  instanced  by  Mr.  Starkie,  of  the  presumption  of  the  sat- 
isfaction of  a  bond  after  the  lapse  of  twenty  years,  without  payment 
of  interest  or  other  acknowledgment  of  its  existence,  while  if  a  single 
day  less  than  the  twenty  years  has  elapsed,  such  presumption  does 


388  DERIVATIVE  TITLES  (Part  2 

not  arise,  we  find  it  to  be  extremely  arbitrary  and  technical.  No  nat- 
ural reason  can  be  given  why  the  lapse  of  the  last  day  should  operate 
to  produce  in  our  minds  a  conviction  or  belief  of  payment,  while  the 
lapse  of  all  the  days  and  years  preceding  it  does  not  so  operate.  Such 
is  not  its  effect.  But  as  from  common  experience  of  the  affairs  of 
men,  there  arises  in  the  mind,  after  the  lapse  of  many  years  without 
payment  of  interest  or  other  acknowledgment,  a^  strong  probability  that 
a^debt  has  been  satisfied,  and  as  the  law  loves  certamty  and  industri- 
ously avoids  doubts,  it  has  from  these  motives  arbitrarily  fixed  a  period 
of  time  at  the  expiration  ni  which  this  probability  shall  ripen  into  and 
take  effect  as  a  presumption  nf  law,  and  at  which  the  rights  and  posi- 
tion of  the  parties  in  reference  to  such  debt,  flowing  from  the  mere 
lapse  of  time,  unaccompanied  by  other  circumstances,  shall  become 
determined  and  certain.  This  presumption,  which  is  in  so  many  re- 
spects artificial,  is  in  no  respect  inconsistent  with  the  fact  from  which 
it  is  said  to  arise.  On  the  contrary,  though  not  conclusively  sustained, 
it  is  strongly  corroborated  by  the  fact;  since  experience  teaches  that 
it  is  very  improbable  that  the  holder  of  the  bond  would,  unless  it  were 
satisfied.  permit_such  a  space  of  time  to  elapse  without  receiving  the 
intere^  or  obtaining  from  the  maker  some  other  evidence  of  its  non- 
payment. The  same  is  true  of  that  most  purely  artificial  presumption, 
that  a  bond  or  other  specialty  was  executed  upon  a  good  consideration, 
which  is  so  peremptory  and  absolute  in  its  nature  that  it  cannot  be 
rebutted  by  evidence;  whilst  the  consideration  of  another  instrument, 
executed  and  delivered  under  precisely  the  same  circumstances,  and  in 
the  sam e  words,  but  not  under  seal^  may  be  freely  inquired  into__an d 
impeached ;  yet  there  the  conclusion  that  it  was  made  upon  a  good 
consideration  is  entirely  consistent  with  the  facts  from  which  it  is 
drawn ;  for  tligre  is  much  reason  for  supposing  that  without  a  good 
consideration,  it_would  not  ha,ve  been  sealed  and  delivered.  Without 
multiplying  illustrations,  I  think  it  will  be  found  that  in  no  instance 
(unless  the  present  case  is  to  form  an  exception)  does  the  law  infer 
the  existence  of  facts  in  clear  and  direct  opposition  to  those  upon 
which  the  inference  rests.  It  does  not  do  so  here.  Reason  rebels 
against  it,  and  neither  justice  nor  equity  demands  it.  The  only  result 
of  dropping  the  absurdity  will  be  that,  as  in  the  present  case,  in  a  con- 
test between  two  equally  meritorious  parties,  the  title  to  the  property 
of^hich  a  conveyance  was  sought  to  be  made,  will  be  adjudged  to  be 
in  him  whom  reason  designates  as  the  true  owny. 

^ The  mistake  of  the  learned  justice  consisted  in  his  carrying  the  pre^i^^ 

sumption  of  law  so  far  as  to  say  that  it  presumes  that  a  person  has 

consented  to  that  of  which  he  knows  nothing,  which  is  an  impossibility^ 
instead  of  saying,  what  was  more  truly  said  by  the  more  logical  and 
cautious  courts  and  judges  of  his  time,  and  by  Lord  Ellenborough,  in    . 
Stirling  v.  Vaughn,  11  East,  623,  namely,  that,  jf  nothing  appears  jo 
the  contrary,  the  law  presumes  that  he  will  accept  that  which  is  for  his  , 


Ch.  2)  Execution  of  deeds  389 

benefit,  when  he  is  informed  of  it,  which  assent,  in  tlie  absence  o£  in- 
tgrveningnghts  or  eciuilies,  will  have  i^latimWxi^  to  the  time.of_iie- 
livery  fcjr  his  use,  and  make  his  title  goo^a^^m  that  date.  After 
a  brief  argument  of  this  sort,  he  proceeds  to  say,  "that  very  odd  con- 
sequences and  inconveniences  would  fuUow,  if  surrcnder>  sliould  be  in-  /^  £.,^^_JU^ 
effectual  till  an~express  consent  of  the  surrenderee,"   and  that  most  5 

disa_strous~effects  upon  estates  and  conveyancing  in  England  would  en-  ,s^,tri'^.>C«^v-Zt 
sue,  unless  her  courts  adopted  and  upheld  his  absurilily.  It  is  said  that  J 
one  error  surely  gives  rise  to  another  and  a  greater.  This  saying  was 
never  more  aptly  and  forcibly  illustrated,  than  by  the  fantastic  feats 
which  the  learned  justice  makes  the  common  law,  the  sober  common 
sense  of~ages,  perform  by  way  of  getting  the  title  back  again  in  the 
grantor  in  case  the  grantee  refuses  to  accept  the  conveyance.  He  says 
that  after,  by  this  kind  of  one-sided  contract,  it  has  got  into  him  with- 
out his  knowledge,  it  remains  with  him  without  his  consent  until  he 
absolutely  rejects  and  spurns  the  offer,  and  that  then,  by  some  magi- 
cal power  of  the  law,  such  rejection,  without  deed  or  other  writing, 
becomes  an  instrument  of  conveyance,  by  which  the  legal  title  to  land 
is  conveyed  from  one  who  has  it  to  one  who  has  it  not,  against  the 
express  wishes  of  the  latter  and  in  despite  of  his  own  deed,  the  high- 
est  and  most  solemn  act  known  to  the  law,  by  which  he  could  rid  him 
self  of  it.  It  is  not  surprising  that  the  learned  and  logical  Chief  Jus- 
tice Gibson,  in  Read  v.  Robinson,  6  Watts  &  S.  (Pa.)  329,  while  com- 
menting upon  what  he  calls  "the  masterly  argument  of  Justice  Ventris, 
in  Thompson  v.  Leach,"  says,  that  "the  difficulty  is  to  comprehencijiow 
the  remitter  can  take^effect  without _displacin^  intermediate  interests 
springing  from  the  rejected  deed;"  and  then,  as  if  in  despair  of  ever 
comprehending  it,  he  dismisses  the  subject  from  his  mind  by  saying, 
"but  the  authorities  conclusively  prove  that  it  may."  All  agree  that. 
neither  the  grantor  nor  the  stranger  who  consents  to  receive  and  hold 
the  deed,  can,  by  their  acjs,  bind  the  grantee,  and  that  the  latter  may, 
on  receiving  notice  6T^,  repudiate  it  altogether.  If  the  title  vests  in 
the  grantee  at  once,  it  must,  of  course,  vest  according  to  the  terms 
of  the  conveyance,  and  in  the  case  of  an  absolute  conveyance,  he  would  . 
have  an  absolute  title.  If,  after  delivery  to  the_stranger^_and_befjQre 
notice  to  the  grantee,  a  creditorjof  the  latter  should,  fiisten  upoj.l_iIie 
property  by  execution  or  attachment,  no  reason  can  be  given  why  he 
could  not  hold  it.     If  it  is  the  property  of  the  grantee,  it  follows,  as  "^    *" 

of  course,  that  the  creditor  would  have  this  right,  and  that  he  would 
at  once  acquire  a  lien  to  the  extent  of  Kis  demand.  Suppose,  after 
this  is  done,  that  the  grantee,  on  receiving  notice,  refuses  to  accept  the 
conveyance,  what  becomes  of  the  property?  Does  the  refusal  unbind 
and  get  the  propert^_fj;:£e  from  the  seizure  of  the  creditors,  and  remit 
the  title  at  once  back  tojthe  grantor  ?  Dr  does  the  intendment  of  Jus- 
tice Ventris  step  in,  in  behalf  of  the  creditor  as  well,  and  say,  because 
the  grant  is  presumed  beneficial  to  the  grantee,  and  he  might,  at  some 


390 


DERIVATIVE  TITLES 


(Part 


future  period,  accept  it,  that  therefore  he  shall  be  deemed  to  have 
accepted  it  before  the  seizure,  and  at  a  time  when  he  was  utterly  ig- 
norant of  it,  and  thus  enable  the  creditor  to  witlihpld  the  property  from 
the  grantor,  by  which  means  it  would  happen  that  although_  it  jvas 
neither  bought  nor  sold,  the  grantor  would,  without  consideration,  lose 
it,  and_the  grantee  enjoy  the  full  benefit  of  it  on  the  same  terms? 
Knowing  of  no  rational  or  satisfactory  answers  which  can  be  given 
to  these  and  various  similar  questions  which  will  readily  suggest  them- 
selves to  the  reader,  I  leave  them  to  be  replied  to  by  those  who  main- 
tain that  the  title  to  property,  real  or  personal,  may,  without  words 
written  or  spoken,  or  other  act  of  transfer,  be  thus  mysteriously_passed 
and  re£assed  between  parties  by  contract.     T  deny  that  it  ni^^jj___be. 

It  seems  to  me  very  plain,  that  it  does  not  pass  in^  fact  untij  the 
grantee  has  actually  consented  to  receive  it;  and,  as  of  course,  that  it 
.  remains  wi_lli_the_grantor,  who  is  unable,  without  such  consent,  to  vesl 
/  iTin  the  grantee.  No  other  conclusion  is  consistent  with  the  doctrine 
*  that  a  grant  is  a  contract,  and  that  the  assent  of  the  grantee  is  neces- 
sary to  give  it  validity.  The  justice  assumed  the  question  in  contro- 
versy by  saying  that  the  execution  and  delivery  of  the  deed  to  the 
stranger  passed  the  title  out  of  the  grantor,  and  then  he  was  under  the 
necessity  of  resorting  to  these  further  absurdities,  in  order  to  account 
for  it;  for  he  says,  "that  it  is  not  a  slight  matter,  but  what  the  law 
much  considers,  and  is  very  careful  to  have  the  freehold  fixed,"  and 
not  "under  such  uncertainty,  as  a  stranger  that  demands  right  should 
not  know  where  to  fix  his  action."  1/  he  had  considered  that  the  op- 
eration of  the  deed  was  suspended,  or  that  it  did  not  take  eflfect  until 
the  grantee  had  assented,  he  would  have  been  saved  the  trouble  of 
drawing  so  largely  on  his  imagination  to  show  where  the  title  was,  and 
how  it  was  thereafter  to  be  controlled.  It  is  a  matter  of  no  small 
mnmpnj-,  anH  nf  just  pride  to  the  bench  of  England,  that  Justice  Ven- 
tris,  at  the  time  he  wrote  his  wonderful  argument,  dissented,  and  that 
the  other  members  of  the  Court  of  Common  Pleas,  viz.^  ^olle2ci.en, 
Chief  Justice,  and  Powell  and  Rokeby,  Associates,  were  of  opinion 
in  the  case,  "that  there  was  no  surrender  till  such  time  as  the  sur- 
renderee hadnotice  of  the  deed  of  surrender  and  had  agreed  to  i_t." 
and  tliat  it  was  so  adjudged  by  that  court ;  and  that  the  case  was  after- 
wards taken  by  writ  of  error  to  the  King's  Bench,  of  which  Lord  Holt 
was  at  the  time  Chief  Justice,  and  the  judgment  of  the  Common  Pleas 
"was  there  affirmed  by  the  unanimous  consent  of  the  whole  court." 
It  was  afterwards  brought  by  error  into  the  House  of  L^nrHs,  where. 
i/Ct-  ^^  it  is  said,  upon  the  reasons  contamed  in  Justice  Ventris'  argument. 

xl^  /^^  the  judgment  pronounced  in  both  superior  courts  was  reversg.d.    Thus 

y(Jl^  y^  "'we  have  on.  the  one  side  the  legal  learning,  and  almost  tne  unanimous 

■   "^  "TjLt  opinion  of  the  courts,  and  on  the  other  the  judgment  of  reversal  of 

the  House  of  Lords,  the  great  majority  of  whom  knew  very  little, 
and  cared  less,  about  the  correct  settlement  of  legal  principles. 


rU'<y^ 


w 


Ch.2) 


EXECUTION   OP   DEEDS 


391 


The  argument  is  of  a  piece  with  that  kind  of  reasoning  once  em- 
ployed to  prove  that  titles  to  estates  were  "in  abeyance,"  "in  nubibus," 
and  "in  gremio  legis,"  the  folly  of  which  is  so  thoroughly  exposed  and 
exploded  by  the  severe  and  searching  logic  of  Mr.  Fearne,  in  his  ad- 
mirable treatise  on  Remainders.  See  pages  360  to  364,  inclusive.  It 
was  held,  in  case  of  a  lease  to  one  person  for  life,  remainder  to  the 
right  heirs  of  another  still  living,  that  no  estate  remained  in  the 
grantor ;  and  because  there  was  no  heir,  for  the  reason  that  no  one 
can  be  heir  during  the  life  of  his  ancestor,  but  only  after  his  death, 
and  because  the  tenant  took  only  a  life  estate,  the  remainder  was  said 
to  be  in  abeyance,  in  the  clouds,  or  in  the  bosom  of  the  law.  These 
opinions  were  founded  upon  the  very  same  assumption  as  tliat  of  Jus- 
tice Ventris,  namely :  That  the  remainder  passed  out  of  the  donor 
at  the  time  of  livery,  and  consequently  that  no  estate  remained  in  him 
tliereaf ter ;  and  because  the  title  must  always  be  somewhere,  the  ad- 
vocates of  the  doctrine  sent  it  to  the  clouds ;  "though,"  says  Mr. 
Fearne,  "by  some  sort  of  compromise  between  common  sense  and  the 
supposition  of  an  estate  passing  out  of  a  man,  when  there  is  no  per- 
son in  rerum  natura,  no  object  beside  hard  and  hardly  intelligible 
words,  for  the  reception  of  it  at  the  time  of  the  livery,  they  are  com- 
pelled to  admit  such  a  species  of  interest  to  remain  in  the  grantor, 
as  upon  the  determination  of  the  estate  before  the  contingent  remain- 
der can  take  place,  entitles  the  grantor,  or  his  heirs,  to  enter  and  re- 
assume  the  estate." 

The  questions  are  so  closely  allied,  and  the  substrata  of  the  two 
follies  are  so  exactly  alike,  that  Mr.  Fearne's  reasoning  is  fully  in 
point.  And  it  is  certainly  refreshing,  after  a  perplexing  and  vain 
effort  to  understand  that  which  never  was  and  never  will  be  intelligible, 
to  take  up  an  author,  who,_like  Mr.  Fearne,  treats  the  subject  upon 
the  principles  of  comrnon  sense.  He  intimates  a  conviction,  that  in- 
stead of  the  titles  to  estates  being  in  the  clouds,  there  is  a  much  strong- 
er  probability  ofcaput  inter  nubilia  condit,  of  the  head  of  the  inventor 
of  the  fiction  having  been  buried  or  hidden  in  them!  He  says:  "I"can- 
nolTbut  "thmk  it  ^  more  arduous  undertaking,  to  account  for  the 
operation  of  a  feoffment  or  conveyance,  in  annihilating  an  estate  of  in- 
heritance, or  transferring  it  to  the  clouds,  and  afterwards  regenerat- 
ing or  recalling  it  at  the  beck  of  some  contingent  event,  than  to  recon- 
cile to  the  principles  as  well  of  common  law  as  of  common  sense,  a 
suspension  of  the  complete,  absolute  operation  of  such  feoffment  or 
conveyance,  in  regard  to  the  inheritance,  till  the  intended  channel  for 
the  reception  of  such  inheritance  comes  into  existence,"  The  same  is 
true  of  the  deli.very  of  a  deed  to  a  third  perspn  for  thg  use  of  the 
grantee,  without  his  knowledge  or  previous  direction.  It  is  far  more 
compatible  with  common  law  and  common  sense,  to  say  that  its  op- 
emtmn  is  suspendedL  until  the  happening^of  the  event  indispensable  in 
the_JaAV  to  its  validity,  namely  an  acceptance  by  the  grantee,  than  jo 


392  DERIVATIVE  TITLES  (Part  2 

make  the  law  perform  the  wonderful  exploits  of  vesting  and  recalling 
the  title  contrary  to  its  best  settled  and  soundest  principles.  \I  am  of 
opinjon  theref oret_thjit_^the  defendant^in_error  took  no  interest  in  the 
goods  in  question  by  virtue  of  their  iTT^rtgages^  until  after  the  plamtiff 
in  error  had  seized  them  uponjgrocess  of  attachment,  and  consequently, 
that  they  cannot  maintain  their  action. 

Aluch  was  said  in  this  case  about  the  manner  in  which  the  mort- 
gages were  delivered.  There  can  be  no  doubt  that  so  far  as  the  mort- 
gagor was  concerned,  the  delivery  was  good.  They  were  placed  by 
him  in  the  hands  of  a  stranger,  to  be  by  him  delivered  to  the  mort- 
gagees, and  thus  passed  beyond  his  reach  and  control,  unless  the  mort- 
gagees, within  a  reasonable  time  after  notice,  should  refuse  their  as- 
sent. This  made  the  delivery,  as  to  the  mortgagor,  valid  and  binding, 
which  is  all  I  understand  the  author  of  the  Touchstone  to  mean,  when 
he  says  that  a  deed  "may  be  delivered  to  any  stranger  for  and  in  be- 
half and  to  the  use  of  him  to  whom  it  is  made."  B\;t  a  deliverv  bv 
the  donor  to  a  third  person,,  loxjlie  use  of  tlie  donee,  and  an  acceptance 
by  the  latter,  are  two  very  different  things.  By  the  former,  the  donor 
signifies  his  willingness  to  part  with  the  property,  whilst  by  the  latter 
the  donee  makes  known  his  assent  to  receiving  it,  and  both. must  con- 
cur be  fore^^thejitle^^^JTanged  or  affected.  It  was  formerly,  and  may 
perhaps  by  some  be  still  supposeHTthat  there  can  be  no  delivery  with- 
out at  the  same  time  an  acceptance;  that  they  are  correlative,  insep- 
arable parts  of  the  same  transaction,  and  must  both  occur  at  the  same 
instant  of  time ;  and  hence,  in  part,  the  fiction  of  relation,  by  which 
in  case  of  a  delivery  by  the  grantor  to  a  stranger,  the  slibsequent  ac- 
ceptance by  the  grantee  was  carried  back  in  legal  contemplation  to  the 
time  when  the  grantor  gave  the  deed  to  the  stranger,  in  order  to  save 
the  logic  of  the  law  and  to  preserve  "the  eternal  fitness  of  things." 
It  seems  to  me  that  every  case  in  which  it  has  been  adjudged  that  there 
rnay^be'a  delivery  to  a  stranger,  aii(J"Biat  asubsequent  ratification  by 
t^ie  grantee  will  maTcie~tfie  instrument  ettectual  for  the  purposes  in- 
tended, talsihes  this  notion  and  proves  that  in  every  sucircase  there 
may  be,  what  there  is  in  fact,  a  delivery  by  the  grantor  at  one  time 
to  a  third  party,  and  an  acceptance  by  the  grantee  from  such  tliird 
part}[^t  a  subsequent  and  dilterent  time.  Such  is  the  common  sense 
of  the  transaction!  and  it  is  better  and  more  rationally  disposed  of 
without  than  with  the  aid  of  the  fiction.  But  if  the  fiction  must  be 
employed  then  the  maxim,  in  fictione  legis  semper  subsistit  equitas,  ap- 
plies, and  it  will  not  be  allowed  to  operate  when  it  infringes  or  vio- 
lates the  rights  of  strangers.  It  is  only  resorted  to  in  furtherance_p£ 
justice  and  to  prevent  injury.  In  this  case  the  plaintiff  in  error  is 
a  stranger  to  the  mortgages.  He  represents  the  rights  and  interests 
of  the  creditors  of  the  mortgagor,  who  in  good  faith  sued  out  and 
levied  their  attachments  upon  the  goods,  thereby  lawfully  acquiring  a 
lien  upon  them ;   and  it  cannot  be  said  to  be  in  furtherance  of  justice. 


Ch.  2)  EXECUTION   OF   DEEDS  393 

to^postpone  thejr  demands  thus  legally  secured,  to  those  ofjhe  mo rt- 
gage  creditors,  which_are  in  no  sense  more  equi^ble  or  just.  The 
struggle  is  between  innocenf  persons,  to  prevent  loss,  and  the  fiction 
o u ght  not  to  be  resorted  to_fQr_the  purpose  of  helping  one  as  again s t 
the  other.    The  transaction  must  be  left  to  stand  upon  its  siiii^le  and 

"^dJ^Diiib— '*     *     * 

The  judgment  of  the  circuit  court  is  reversed,  and   a  new  trial 

awarded.*^ 

45  Hibberd  v.  Smith,  67  Cal.  547.  4  Pac.  47.3,  8  Pac.  46,  56  Am.  Rep.  726  (1885) ; 
Hulick  V.  Scovil,  4  Oilman,  1.59  (1847) ;  Woodbury  v.  Fisher,  20  Ind.  387.  83  Am. 
Dec.  325  (3863);  Day  v.  Griffith,  15  Iowa,  104  (1863);  Bell  v.  Farmers'  Bank, 
11  Bush  (Ky.)  .34,  21  Ani.  Rep.  205  (1S75) ;  Parmelee  v.  Simpson,  5  Wall.  81,  18 
L.  Ed.  542  (1866),  ace.  See  Watson  v.  Hillraan,  57  INIich.  607,  24  N.  W.  663 
(1885);  Meigs  v.  Dexter,  172  MjIss.  217,  52  N.  E.  75  (1898).  Buffum  v.  Green. 
5  N.  H.  71.  20  Am.  Dec.  562  (1829) ;  Wilt  v.  Franklin,  1  Bin.  (Pa.)  502,  2  Am. 
Dec.  474  (1809) ;  Merrills  v.  Swift,  18  Conn.  257,  46  Am.  Dec.  315  (1847),  contra. 
See  Jones  v.  Swayze,  42  N.  J.  Law,  279  (1880). 


i7c^ 


394  DERIVATIVE  TITLES  (Part  2 

CHAPTER  III 
THE  PROPERTY  1  CONVEYED 


SECTION  1— BOUNDARIES 

^^\    - 

HARRIS  V.  WOODARD. 
(Supreme  Court  of  North  Carolina,  1902.     130  N.  C.  5S0,  41  S.  E.  790.) 

Action  by  J.  W.  Harris  and  others  against  the  Woodard  &  Good- 
ridge  Company,  heard  by  Judge  Walter  H.  Neal  and  a  jury,  at  Febru- 
ary Term,  1902,  of  the  Superior  Court  of  Granville  County.  From 
a  judgment  for  the  plaintiff,  the  defendant  appealed. 

Clark,  J.  The  plaintiffs,  holders  of  a  second  mortgage,  seek  to 
enjoin  sale  under  a  prior  mortgage  executed  by  the  mortgagor  to  cle- 
fendants.  because  the  descrip^on  in  the  latter  is  too  vague  and  indeH- 
nitejo  pass  title  to  the  defendants.  Said  description  is  as  follows :  "A 
certain  piece  or  tract  of  land,  grist  mill  and  all  fixtures  thereunto, 
and  one  store-house,  28  by  100  feet  long,  lying  and  being  in  Brass- 
field  township,  Granville  County,  N.  C,  and  adjoining  the  lands  of 
Anderson  Breedlove,  J.  C.  Usry  and  Dora  Harris,  said  lot  to  contain 
three  acres."  There  are  forty  acres  in  the  tract  on  which  the  store 
and  grist  mill  are  located.  There  is  nothing  to  segregate  this  three 
acres  out  of  the  forty,  nothing  to  indicate  a  heginning,  nor  where 
or  in  what  direcfion  the  lilies^j  to  be  run-^nothing  whatever  beyond 
the  inference — for  it  is  not  expressly  stated  that  the  grist  mill  and 
store-house  are  to  be  located  somewhere  upon  tlie  said  three  acres  when 
laid  off.  ■ 

As  was  said  by  Gaston,  J.,  in  Massey  v.  Belisle,  24  N.  C.  170,  '^v- 
ery  deed  of  conveyance  must  set  forth  a  subject-matter,  either  cer- 
tain in  itself  or  capable  of  being  reduced  to  a  certainty  by  recurrence 
to  something  extrinsic  to  which  the  deed  refers."  Here  there  is  no 
subject-matter  which  is  either  definite  in  itself  or  capable  of  being 
reduced  to  a  certainty  by  recurrence  to  something  to  which  the  deed 
refers.  No  beginning  point,  nor  directions  are  given,  nor  distances, 
and  there  is  riothing._which  authorizes  anyone  to  lav  off  the  lines  Jjf 
any  particular  three  acres  out  of  the  forty  in  the  tract,  which  tract 
is  bounded  by  the_parties  named.     The  reference  to  them  renders 

1  The  word,  of  course,  is  not  used  here  in  its  narrow,  technical  sense  of  a 
right,  but  in  its  broader,  more  popular  sense  of  the  external  object  over  which 
rights  are  exercised. 


^^  a. 


Ch-S) 


THE   PROPERTY   CONVEYED 


395 


the  forty-acre  tract  certain,  but  is  no  aid  in  rendering  it  possible  to 
select  three  acres  out  of  said  tract.  This  is  not  like  the  "twenty-nine 
acres  to  be  cut  off  of  the  north  end"  of  a  tract  which  was  bounded 
by  straight,  well-defined  lines,  and  whose  selection  required  merely 
a  knowledge  of  surveying,  as  in  Stewart  v.  Salmonds,  74  N.  C.  518,  nor 
a  similar  description  in  Webb  v.  Cummings,  127  N.  C.  41,  V7  S.  E.  154. 

The  statute,  Laws  1891,  chap.  465,  applies  only  where  there  is  a 
description  which  can  be  aided  by  parol,  but  not  when,  as  in  this  case, 
there  is  no  description.  Hemphill  v.  Annis,  119  N.  C.  514,  26  S.  E. 
152;  Lowe  v.  Harris,  112  N.  C.  472,  17  S.  E.  539,  22  L.  R.  A.  379. 
In  Lowe  v.  Harris  there  were  the  words  "his  land,"  which  the  minority 
of  the  Court  insisted  could  be  helped  out  by  parol  evidence,  but  here 
there  is  only  an  uncertain,  indefinite,  undefined  and  undefinable  three 
acres  out  of  a  tract  of  forty,  and  the  Court  properly  held  that  thisjvas 
too  indefinite  to  be  a  conveyance  of  any  three  acres,  and  the  mortgage 
was,  therefore,  void  as  to  the  land.  _  •   ry 

No  error.2  Wmt^-Ca^^-^   -vrtr*-^ 

LEGO  V.  MEDLEY. 

(Supreme  Court  of  Wisconsin,  1891.    79  Wis.  211,  48  N.  W.  375,  24  Am.  St. 

Rep.  706.) 

Taylor,  J.  The  questions  arising  in  this  case  grow  out  of  a  fore- 
closure action  brouglit  by  the  plaintiff  and  appellant  against  the  re- 
spondent and  the  other  persons  named  to  foreclose  a  mortgage,  ^hg 
mortgage  sought  to  be  foreclosed  was  given  to  the  appellant  by  Richard 
P.  Medley,  dated  October  16.  1888.  to  secure  the  payment  of  .^500  and 
the  interest  thereon.  The  property  mortgaged  was  described  in. the 
mortgage  as  the  W.  %  of  the  S.  W.  14  of  section  9,  township  30  N.,  of 
range  6  W.,  in  Chippewa  county.  Wis.  None  of  the  defendants  in  the 
acdon  appeared  in  the  case  or  defended  the  action,  except  the  respondent 
Rose  Medley.  She  answered  that  she  was  the  mother  of  the  mortgagor, 
Richard  P.  Medley,  and  that  on  the  9th  day  of  April,  1884,  she  was  the 
owner  in  fee-simple  of  the  W,  1/;.  of  the  S.  W.  I/4  of  said  section  9,  the 
property  described  in  said  mortgage,  and  on  said  9th  day  of  April,  1884, 
for  love  and  affection  for  her  said  son,  she  conveyed  to  him,  by  an  ordi- 
nary warranty  deed^  so  much  of  said  W.  1/2  of  said  section  9  as  is 
gescribed  in  said  deed,  and  no  more.  The  following  is  the  description 
contained  in  said  deed  from  her  to  her  said  son,  viz. :   "The  west  half 


2  Cathey  v.  Buchanan  Lumber  Co.,  151  N.  C.  592,  66  S.  E.  580  (1909) ;  King 
V.  Ruckman,  20  N.  J.  Eq.  316  (1SG9) ;  Le  Franc  v.  Ricbmond,  5  Sawy.  601,  Fed. 
Cas.  No.  8,209  (1864),  ace. 

In  Gaston  v.  Weir, .84  Ala.  193,  4  South.  258  (1887),  the  description  in  ques- 
tion was  "forty-seven  and  one-fourth  acres  of  the  west  part  of  the  north  half 
of  the  northwest  fourth  of  section  1."  It  was  held  that  the  land  could  be  lo- 
cated. See,  also,  Tiernev  v.  Brown,  65  Miss.  563,  5  South.  104,  7  Am.  St.  Rep. 
679  (1888) ;  Osteen  v.  Wynn,  131  Ga.  209,  62  S.  E.  37,  127  Am.  St.  Kep.  212; 
(1908). 


396  DERIVATIVE  TITLES  (Part  2 

of  the  southwest  quarter  of  section  nine  (9),  township  thirty  (30), 
range  six  (6),  except  one  acre  from  the  southeast  corner  of  the  south- 
west quarter  of  the  southwest  quarter  of  said  section,  town,  and 
range,  together  with  the  buildings  thereon."' 

This  deed  was  duly  recorded  in  the  proper  register's  office  on  the 
10th  of  April,  1884.  She  also  set  forth  in  her  answer  that  at  the  time 
of  and  ever  since  the  execution  of  said  deed  to  her  said  son  she  was, 
and  since  has  been,  in  the  actual  possession  of  said  acre  of  land,  and 
the  buildings  thereon,  and  is  stiU  Jn  the  possession  of  the_sarne_^  and 
she  further  alleges  in  her  complaint  that  the  acre  of  land,  with  the 
buildings  thereon,  excepted  in  her  said  deed,  and  which  she  has  always 
occupied  and  still  occupies,  is  bounded  as  follows:  "Beginning  at  the 
boundary  line  of  the  highway  which  runs  along  the  south  side  of  said 
southwest  quarter  of  the  southwest  quarter  of  section  nine  (9^  afpre- 
said,  on  the  hne  of  division  between  the  southwest  quarter  of  the  south- 
west quarter,  and  the  southeast  quarter  of  southwest  quarter,  of  sec- 
tion nine  (9)  aforesaid ;  thence  west  along  the  boundary  line  of  said 
highway  seventeen  rods  and  three  quarters;  thence  north,  at  right 
angles  to  the  boundary  line  of  said  highway,  nine  rods ;  thence  east 
to  the  boundary  line  between  the  southwest  quarter  of  the  southwest 
quarter  and  the  southeast  quarter  of  the  southwest  quarter  of  section 
nine  (9)  aforesaid,  seventeen  rods  and  three  quarters;  thence  south, 
along  the  boundary  line  between  the  southwest  quarter  of  the  south- 
west quarter,  and  the  southeast  quarter  of  the  southwest  quarter,  of 
section  nine  (9)  aforesaid,  to  the  place  of  beginning;  that  said  acre  of 
land  so  measured  belongs  to  this  defendant,  and  that  she  is  the  owner 
thereof,  and  in  the  actual  possession  of  same,  and  has  been  at  all 
times  since  the  making  of  said  deed  to  the  defendant  Richard  P.  Med- 
ley, and  of  the  dwelling-house  and  buildings  situated  ther£Qn.  and  \xas 
in  such  possession  at_the  time  o^jii^aking  of  Jli_e  mort^^e_of_th^^ 
tiff  herein,  and  that,  the  said  Richard  P.  Medley  had  no  right  or  title 
in  or  to  said  land  or  buildings,  and  no  power  or  authority  to  sell  or 
mortgage  same;  that  thejlaintiff  in  this  action  has  no  ri_ght  or  power 
or  permission  to  sej][_or  conyex.^iii.J.and  and  premises,  or  to  exer- 
cise any  rights  of  ownership  m_QrJ:p  same."  There  was  no  demurrer  to 
the  answer. 

On  the  trial  the  plaintiff  offered  in  evidence  his  note  and  mortgage, 
and  made  the  computations  of  the  amount  due  thereon,  and  in  addition 
to  such  evidence  he  did  in  open  court  "release  all  claims  whatever  to 
one  acre  from  the  southeast  corner  of  the  southwest  quarter  of  the 
southwest  quarter  of  section  nine  (9),  town  thirty  (30),  range  six  (6), 
in  Chippewa  county,  Wisconsin,  and  the  buildings  thereon,  and  con- 
sents that  whatever  judgment  is  rendered  in  the  actions  shall  so  de- 
clare," and  rested  his  case;  and  thereupon  Rose  Medley  was  called 
as  a  witness  in  her  own  behalf.  The  plaintiff  then  objected  to  any 
evidence  under  the  answer  of  defendant  Rose  Medley,  upon  the 
ground  that  the  same  does  not  constitute  any  defense  whatever.    And 


Ch.  3)  THE  PROPERTY  CONVEYED  397 

the  counsel  for  the  plaintiff  then  said:  "I  want  to  say  that,  meaning 
to  release  one  acre  in  the  corner  square  and  bounded  by  four  equal 
sides."  The  court  overruled  the  objection  to  the  evidence  offered,  and 
the  defendant  gave  her  testimony  in  the  action.  Thecourt,  under 
objections  on  the  part  of  the  plaintiff,  permitted  the  defendant  to  show 
that  one  acre,  in  the  soutTieast  corner  of  tlie  eighty  acres  described 
in  her  deed  to  her  son,  in  t]ie^fqrm_of_9^^quare_wiiE  iaur.  equal  sides, 
w ould  not  include  her  dwelling-house . 

After  hearing  the  evidence,  the  court  made  the  following  findings  of 
fact  and  conclusions  of  law :  The  1st,  2nd  and  3rd  findings  relate 
to  the  mortgage,  and  the  amount  due  thereon.  The  court  then  makes 
the  following  findings : 

"(4)  That  the  said  defendant  Richard  P.  Medley  derived_h[s  title 
to.  the  mortgaged  premrses__from_^def_endant  Rose  Medley,  undgr..a 
deed  executed  bv  said  Rose  Medley  several  years  prjnr  tr^ th e_(^y er n ti nn 
of  said  mortgage,  and  also  recorded  in  the  office  of  the  register  of  deeds, 
Chippewa  county,  Wis.,  prior  to  the  execution  of  said  mortgage ;  that 
in  said  conveyance  said  lands  are  described  as  follows :  'The  west  half 
of  the  southwest  quarter  of  section  nine  (9),  town  thirty  (30),  range 
six  (6),  except  one  acre  from  the  southeast  corner  of  the  soutliwest 
quarter  of  the  southwest  quarter  of  said  section,  town,  and  range,  to- 
gether with  the  buildings  thereon ;'  that  at  the  the  time  of  the  mak- 
ing  of  said  conveyance  there  was  a  dwelling-house,  and  some  out- 
buildings used  in  connection  therewith,  located  near  the  southeast  cor- 
ner, and  the  said  Rose  Medley  was  in  the 'actual  possession  of  said 
tract  of  land,  and  residing  in  said  dwelling-house;  that  during  all  the 
time  after  the  making  of  said  conveyance,  up  to  the  present,  said 
Rose  Medley  has  continued  to  reside  in  said  dwelling-house,  and  used 
said  outbuildings  in  connection  therewith. 

"(5)  That  at  the  time  of  making  of  said  conveyance  to  Richard  P. 
Medley  there  was,  and  ever  sincehas  been,  a  strip  of  land  two  rods 
wide  off  from  the  south  side  of  said  describiedlJand,_£Qnstitutog_part 
of  the  public  highw^ay,  and  tliat  said  land,  as  used  and  occupied  by  said 
Rose  Medley,  was  bounded  on  the  south  side  by  said  highway. 

"(6)  That  a  square  acre  laid  off  from  the  southeast  corner  of  said 
land  would  not  includethe  said  dwellin^-honse. ;  and  that  an  oblong 
square  acre  lai^  otf  from  said  corner,  having  for  its  southern  boundary 
the  center  of  said  , high way^^^  would  include  said  dwelling-house,  but 
would  not  include  all  the  other  buildings  referred  to  as  used  in  con- 
nection therewith ;  but^n__acresolaM  off  f  roni_said  corner, ^excluding 
the  highwav.  th?vt  is,  t,akmg  for__Uie_corQ£i„Jiie^4)oint  where  the  east 
boundarv  of  said  land  intersects  with  the  highway,  would. include  _all 
of  said  buildings ;  said  acre  would  be  sixteen  rods  long  on  the  south 
boundary,  and  ten  rods  wide  on  the  east  boundary." 

And  as  conclusions  of  law  the  court  finds  as  follows : 

"(1)  That  said  conveyance  from  Rose  Medley  to  Richard  P.  Med- 
ley should  be  rQnstriTpf1_y;ith  reference  tothe  circumstanre?^  attend- 


398  DERIVATIVE  TITLES  (Part  2 

ing  the  transaction,  the  situation  of  the  parties,  state  of  the_property, 
the  locatiorT^r  said  dwelHng-house,  and  other  buildings,  and  the  exist- 
enceof_tFe  hig'hway;  and,  having  regard  for  these  circumstances,  the 
court  holds  that  it  was  the  evident  intention  of  the  parties,  by  the  lan- 
guage used  in  said  conveyance,  that  the  acre  excepted  should  be  laid 
off  from  the  southeast  corner  of  said  west  half  of  the  south  west  nnar- 
ter  in  said  section  nine  (9).  excluding  the  highway,  so  as  to^include_said 
dwelling-house  and  said  outbuildings^  used  inconnectiontherewith  as 
the  same  were  located  at  the  time  of  the  execution  of  said  conveyance, 
which^  said  acre^  as__near  as^can_bejietermijied  f rom.  the_testunony,_  is 
boundecT  as  follows :  Beginning  at  a  point  where  the  east  boundary 
line  of  the  southwest  quarter  of  the  southwest  quarter  of  section  nine 
(9),  town  thirty  (30),  range  six  (6),  intersects  with  the  highway  on  the 
south  side  of  said  land;  thence  west  along  the  said  highway  sixteen 
rods ;  thence,  at  right  angles,  north  ten  rods,  to  the  said  east  bound- 
ary line  of  said  land ;  thence  at  right  angles  south  to  the  place  of  begin- 
ning. 

"(2)  That  plaintiff  is  entitled  to  judgrnent  as  prayed_for  in  the_copi- 
plaint,  except  that  said  judgment  should  provide  only  for  a  salejof 
the  west  half  of  the  southwest  quarter  of  said  section  nine  (9),  ex- 
cepting one  acre  irom  the  southeast  corner  thereof,  described  as  afore- 
sajd." 

The  plaintiff  excepted  to  the  conclusions  of  law,  but  took  no  excep- 
tions to  the  findings  of  fact.  The  learned  counsel  for  the  appellant 
assigns  two  errors:  (F'irst^hat  it  was. error  to  permit  the  defendant 
Rose  Medley  to  introduce  any  evidence  under  her  answer,  on  the 
ground  that  it  does  not  state  facts  constituting  a  defense  to  the  plain- 
tiff's action,  or  to  any  part  thereof ;  tsecon3^>hat  the  court  erred  in 
permitting  parol_f'^'idpnf^_to^id  in  constTuTng  the  deed  given  by  the 
said  defendant  tgjjer  son.  He  also  assigns  as  error  the  allowance  of 
costs  to  the  respondent. 

The  first  objection,  that  the  answer  does  not  constitute  a  defpnsp^o 
the  plaintiff's  action,  or  any  part  thereof^annot  be  sustained  under 
the  rule  established  by  this  court  in  Wickes  v.  Lake,  25  Wis.  71 ;  Roche 
V.  Knight,  21  Wis.  324;  Newton  v.  Marshall,  62  Wis.  8,  17,  21  N.  W. 
803.  These  cases  hold  that  when  the  plaintiff,  in  a  foreclosure  action, 
makes  any  person  defendant,  alleging  "that  he  claims  to  have  some  in- 
terest or  lien  upon  the  mortgaged  premises  or  some  part  thereof,  which 
lien,  if  any,  has  accrued  subsequently  to  the  time  of  said  mortgage," 
such  defendant  may  by  his  answer  set  up  a  paramounLxlaim  to  the 
mortgaged  premises,  or'to  some'par't  thereof,  and  that  such  right  may 
be~tried~and  adjudged  in  the  foreclosure  action.  This  rule  is  cer- 
tamly  the~correct  rule,  and  the  only  way  the  plaintiff  can  avoid  the  trial 
of  the  right  of  the  defendant  so  brought  into  court  by  him,  as  to  his 
paramount  title,  is  to  discontinue  his  case  as  to  such  defendant  so  that 
he  may  not  be  prejudiced  by  the  judgment  to  be  entered  in  the  fore- 
closure action.    See  Hekla  F.  Ins.  Co.  v.  Morrison,  56  Wis.  133,  136, 


Ch.  3)  THE  PROPERTY  CONVEYED  399 

14  N.  W.  12.  As  the  plaintiff  did  not  offer  to  discontinue  his  action  as 
to  the  respondent_after  she  had  filed  her  answer  setting  up  her  para- 
mounjUtle^  he  cannot  now  object  to  the  trial  of  her  right.  He  in  fact 
admitted  her  right,  and  offered  to  take  judgment  recognizmg  her  right 
to  the  acre  excepted  in  her  deed,  but  insisted_thatthe^  excepted  acre 
should^ejn  tlie.  form  of  a  square.  He  therefore  waived  his  objection 
to  her  asserting  a  right  paramount  to  his  mortgage,  and  insisted  in 
binding  her  to  take  the  excepted  acre  in  the  shape  which  he  claimed 
was^ven  to  her  by  the  law  under  her  deed. 

The  learned  counsel  also  insist  that  the  court  erred  in  permitting 
respondent  to  introduce  parol  evidence  of  the  situation  of  her  build- 
ings in  the  southeast  corner  of  said  west  half  of  the  southwest  quar- 
ter, mentioned  in  her  deed  to  her  son,  for  the  purpose  of  locating 
the  acre  of  land  so  excepted  from  her  deed;  the  claim  being  that  the 
exception  in  the  deed  is  the  exception  of  an  acre  in  the  southeast  corner 
in  the  form  of  a  square,  and  that  paj;^evjdence  is  inadmissible  tQ.show 
that  any  other  form  was  intended  by  the  parties.  The  rule  con- 
tended for  by  the  learned  counsel  is  undoubtedly  the  correct  rule  when 
there  is  nothing  else  in  the  deed  which  calls  for  a  different  form.  But 
the  rule  does  not  apply  to  q  £as£_khen  the  exception  is  of  a  certain 
quantity  of  land,  and  the  exception,  from  the  tract  described  in  the 
conveyance,  refers  to  other  objects  than  mere  locality.  It  is  not  de- 
nied  by  the  learned  counsel  that,  if  the  exlreption"  Had  been  of  one 
acre  in  the  southeast  corner  of  the  tract  conveyed,  including  the  gran- 
tor's dwelling-house  situated  thereon,  that  evidence  would  not  be  admis- 
sible to  show  that  one  acre  in  a  square  form  would  not  cover  the 
dwelling-house,  and  that  in  such  case  the  bounds  of  the  acre  should 
be  so  located  as  to  include  the  dwelling-house,  if  this  could  be  done, 
and  still  locate  the  acre  on  the  southeast  corner  of  the  tract  conveyed. 
The  surroundings  and  the  objects  on  the  ground  would  control  the 
shape  of  the  acre,  which,  in  the  absence  of  such  surroundings  and 
objects  called  for  in_the  ^[^ed^  j:he  law  wouM  conslrue  _to„rriean„a 
square  acre.  In  such  case  there  is  no  mistake  in  the  description,  which, 
if  corrected  at  all,  must  be  corrected  in  an  action  brought  for  that 
purpose.  It  is  a  mere  question  of  the  location  of  the  tract  excepted 
in  the  conveyance. 

But  the  learned  counsel  insists  that  an  acre  in  a  square  form  wall 
cover  all  the  material  calls  for  boundary  mentioned  in  the  deed,  be- 
cause the  evidence  shows  that  an  acre,  in  a  square  form,  will  include 
some  of  the  buildings  of  the  defendant  situate  in  the  southeast  corner 
of  the  land  described  in  the  deed.  That  fact  we  do  not  think  meets 
the  call  for  the  buildings  evidently  intended  by  the  parties  to  the  deed. 
Such  acre  would  not  include  the  defendant's  dwelling-house,  which 
was  evidently  far  the  most  valuable  building  situate  on  the  southeast 
corner  of  the  land  described  in  the.  HppH  ;  and  that  fact,  with  the, 
other  evidence  introduced,  raises  a  fair  presumption  that  t^^^  hm'M- 


400  DERIVATIVE  TITLES  .  (Part  2 

ing,  of  all  others,  was^theone  intended_by  the  parties  as  one  of  the 
ouildings_which  they  intended  the  excepted  acre  should  include. 

It  is  true  that  the  description  of  the  excepted  acre  in  the  conveyance 
from  the  mother  to  the  son  is  not  as  particular  and  specific  as  it  should 
have  been,  but,  under  the  evidence  showing  that  at  the  time  the  con- 
veyance was  made  the  grantor  owned  an  adjoining  eighty  acres,  and 
that  her  dwelling-house  and  outhouses  were  situate  on  the  eighty 
acres  conveyed  to  her  son,  that  these  houses  constituted  her  home  at 
the  time,  and  that  after  the  execution  of  the  deed  she  remained  in  the 
occupation  of  her  dwelling  and  outhouses  as  she  had'  done  before 
claiming  to  own  the  same,  strong1y_t£nd-tQ._show  that  _such__d well ing- 
house_and  other  buildings  were  situate  on  the  acre  excepted  in-llie 
conveyance  to  her  son ;  and  as  an  acre  of  land  can  be  laid  off  in  the 
southeast  corner  of  the  tract  described  in  the  conveyance  in  a  conven- 
ient and  useful  form,  so  as  to  include  the  buildings,  it  seems  to  us  that 
the  court  properly  directed  that  it  sEoulHjBe~so  laid  oft'  and  bounded. 
Thevvords  m  the'H^e"s'crTptibn  are  general,  and  not  specific,  and,  in  the 
absence  of  anything  indicating  a  dift'erent  boundary,  the  law  would 
determine  that  the  acre  should  be  a  square;  but^  when  there  is  any- 
thing Jnth^  description  wWcTi' would  not  be  complied  with  by  mak- 
ing the  acre  a  square,  then  the  question  as  to  what  was  TntencTed  by 
the  parlies  by  the  words  used  is  to  be  determined  by  the  surrounding 
circumstances.  In  such  case  there  is  a  latent  ambiguity  on  the  face 
of  the  deed  when  applied  to  the  facts  existing  at  the  time  the  convey- 
ance was  executed,  and  the  intent  of  the  parties  in  such  case  becomes 
a  question  of  fact,  and  not  one^of  lawT^nSe^eterniJned  alone  by^jjie 
mere  words  used  in^the  conveyance. 

The  rule  applicable  to  this  case  is  well  stated  in  Dunn  v.  English, 
.  23  N.  J.  Law,  126,  128.    In  that  case  the  court  say:   "Thejconstruction 
■\       tk    ^       I    of  the  grant  must,  be  favorable,  and  asnear  the  mind  and  i^^j^fltiLg"  "^ 
v/"^^      #  *  /    the  parties  as  the  rules  ol  law  will  adm^  and  to  ascertain  thisjntention 
(^/r  parol  evidence  may  be  resorted  to,  not  to  cont^dicf  omarv  the  words  of 

A^  the  grant,  but  to  show  from  the  situation  and  condition  of  the  subject- 

mattcr  wliat  meaning  the  parties  attached  to  .the  words  used..especial- 
ly  in  matters  of  dcscriiition."  The  rule  above  stated  was  recognized 
and  approved  by  this  court  in  the  opinion  of  the  late  learned  Chief 
Justice  Ryan  in  the  case  of  Lyman  v.  Babcock,  40  Wis.  512.  See,  also, 
Ganson  v.  Madigan,  15  Wis.  144,  82  Am.  Dec.  659;  Prentiss  v.  Brewer, 
17  Wis.  635,  86  Am.  Dec.  730;  RockweU  v.  Mut.  L.  Ins.  Co.,  21  Wis. 
548 ;  and  Sawyer  v.  Dodge  Co.  Mut.  Ins.  Co.,  ZJ  Wis.  503.  This  rule 
is  peculiarly  applicable  to  the  case  at  bar.  The  parol  evidence  was 
oft'ered  to__show  what  the  intention  of  the  Barties_waS-as  to  the  land  ex- 
cepted from  the  deed  f  rom  tBernpther .  to  the  son.  It  does_not  c^nti;a;^ 
diet  the  langiaage  ysedin  jhe.iieedjjL)Ut  tends  to  explain  its  meaning  as 
intended_by  the  £arties_at  the^  time^  The  fact  that  the  respondent 
IivecI7  at  the  time  the  conveyance  to  her  son  was  made,  in  the  southeast 
corner  of  the  eighty  acres  described  in  the  deed,  that  she  had  no  other 


A 


I 


Ch.  3)  THE  PROPERTY  CONVEYED  401 

home,  and  owned  a  farm  adjoining,  explains  what  was  intended  by  the 
use  of  the  words  in  the  deed,  "together  with  the  buildings  thereon," 
and  it  overcomes^the  general  presumption  that,  witlioutanyexplana- 
tion,  an  acre,  in  the  southeast  corner  of  the_Xaild_c(m\^ey^ed,  jnust  be 
construed  to_rriean  a  square  acre.  We  think  there  was  no  error  in 
permitting  the  introduction  of  the  parol  evidence  allowed  on  the 
trial. ^     :i=     *     * 

By  the  Court.     The  jndp^ment  ^f  the,  circuit  court  is  affirmed. 


MOREHEAD  v.  HALL. 
(Supreme  Court  of  North  Carolina,  1900.     126  N.  C.  21.3,  3.5  S.  E.  428.) 

Montgomery,  J.  This  is  an  action  for  the  recovery  of  tlie  pns- 
sessionjof  a  tract  of  l^nd.  On  the  trial  the  plaintiff  introduced  a  chain 
of  paper-title,  beginning  with  a  grant  to  John  Benthall,  dated  October 
30,  1765,  and  concluding  with  a  deed  from-  Joseph  A.  Perry  to  John 
M.  Morehead,  the  plaintiffs  being  his  heirs-at-law.  dated  July  17, 
1856,  and  testimony  gomg  to  show  that  the  locus  in  quo  was  covered 
by  the  descriptions  in  the  conveyances,  and  that  David  B.  Hall,  one 
of  the  defendants,  was  in  possession  of  the  land  at  and  before  the  com- 
mencement of  the  action. 

There  was  no  objection  entered  to  any  of  the  evidence,  and  at  its 
conclusion,  as  stated  in  the  case  on  appeal,  "the  defendants  jointly  de- 
murred to  the  evidence,  and  moved  to  dismiss  the  action  under  the 
Act  of  1897."     The  motion  was  allowed,  and  the  plaintiffs  appealed. 

In  each  of  the  muniments  of  title,  the  whole  of  the  land  described  in 
the  complaint  was  conveyed,  except  that  in  one  of  the  deeds,  the 
one  from  Mary  Bell  and  others,  the  heirs-at-law  of  David  Bell,  to  H. 
G.  Cutler,  the  land  was  described  as  "a  certain  piece  of  land  in  the 
f ojk  of  Newport.-Oii..the  north  side  of  the  Southwest  branch,  adjoin- 
ing  the  lands  of  William  C.  Wallace,  deceased,  and  others,  it  being 
one-half  of  a  tract  of  land  gi\-en  by  Malachi  Bell,  Sr.,_to^his  son  David 
Bell,  as  will  more  f.iLUy  appear  by  reference  to  the  will  of  Malachi  Bell 
to  David  Bell,  containing  200  acres  more  or  less." 

The  counsel  of  the  defendants  contended  here,  as  to  the  construc- 
tion of  that  deed,  first,  that  nothing  was  conveyed  therein  because  of 
a  totally  defective  description  of  a  particular  portion  of  the  200-acre 
tract,  which  was  attempted  to  be  conveyed;  and  second,  that  even 
conceding  tHat^tHere  was  conveyed  in  the  deed  a  one-half  undivided 
interest  in  the  200-acre  tract,  yet  the  plaintiff's  could  recover  n^  part  of 
the  land,  for  the  reason  that  they  did  not  show  on  the  trial  who  were 
the  owners  of  the  other  half  of  the  tract  in  order  that  a  judgment 
mjght  be  rendered  for  them,  and  the  plaintiffs  as  tenants  in  common. 

3  The  portion  of  the  opinion  relating  to  the  matter  of  costs  is  omitted.  - 
Aig.Pkop.— 26 


402  DERIVATIVE  TITLES  (Part  2 

We  think  that  the  contention  in  neither  of  its  forms  can  be  sus- 
tained. We  are  without  a  decision  on  the  first  point  in  our  Reports, 
nor  have  we  been  able,  after  a  dihgent  research,  to  find  much  in  the 
Reports  of  the  courts  of  other  States,  and  so  we  are  left  to  ad^pta 
construction  of  the  deed,  as  best_we  may,  from  the  lightof  reason. 

We  are  ot  the^opmion  that  there  was  conveyed  in  the  deed~a  one~^'half 

undivided  interest  in  the  200  acres.     Some  confusion,  it  is  true,  has 

ariien  out  of  the  use  of  the  words  "a  certain  piece  of  land,"  but  there 

was  no  attempt  to  describe  that  "certain  piece"  by  metes  arid  bounds, 

or  by  any  other  definite  description.     If  such  an  attempt,  that  is,  an 

attempt  to  convey  a  specific  number  of  acres,  by  survey  or  by  metes 

and  bounds,  had  been  made,  and  the  boundaries  and  description  had 

been  fatally  defective,  then  nothing  would  have  been  conveyed,  for 

such  an  attempted  description  would  have  shown  in  its  own  terms 

that  an  undivided  interest  had  not  been  attenjpted  to  be  conveyed. 

The  deed  on  its  face  conveys  only  a  part,  one-half  of  a  well-descriiied 

tract,  and  makes_np  pretense  to  describe  the  particular  part  conveyed, 

we  see  no  reason  why  the  deed  should  not  be  construed  as  con- 

*.*-''  Iveymg  a  one-half  undivided  interest  in  the  land.     That  view  is  sup- 

XA'^  ,,\  Iported  by  the  opinion  in  Grogan  v7  Vache,  45  J!lal.  610.    But  in  Gibbs 

(  Ifi^    V.  Swift,  12  Gush.  (Mass.)  393;   Jackson  v.  Livingston,  7  Wend.  (N. 

nl^iM'  Y.)  136,  and  L.  I.  Railroad  Co.  v.  Conklin,  29  N.  Y.  572,"  a  contrary 

I  doctrine  is  held,  that  is,  tliat  even  if  there 'was  an  attemptto  convey 

a  given  part  of  a  larger  tract  of  land,  ancTthe  deed„should  fail  to  lo- 

cate  the  quantity  by  a  sufficient  dp<;rriptinn^  ypt^   upon   thp  dpHvpry--nf 

-j^'  thejdeed,  the_£rantee  would  become  tlie  owner,  tenant  m  common  \yith 

\£f  hjs__grantor.     We  adopt  the  other  construction  because  we  think  it 

^  the  more  reasonable,  and  more  m  conformity  with  the  trejTd_of_our 

decisions  on  the  questions  xiI_boundary  and  description.     Either  con- 
struction, however,  is  against  the  defendants'  contention."     *     *     * 
New  trial.        ^JU^<i-^J:-*^    ^^>^     ^>i-0^  , 

HOBAN  V.  CABLE.  ^^^^-^^  f^^  ' 

(Supreme  Court  of  Michigan,  1S94.  102  Mich.  206,  60  N.  W.  466.) 
Montgomery,  J.^  This  is  an  action  of  ejectment.  The  trial  was  had 
before  a  jury,  and  a  verdict  rendered  for  the  plaintiff.  The  defendant 
brings  error.  The  assignments  of  error  are  numerous,  but  have  been 
carefully  grouped  by  the  appellant's  counsel,  so  that  the  questions  may 
be  dealt  with  under  a  few  heads.  The  diagram  on  the  following  page 
will  furnish  an  aid  to  an  understanding  of  the  points  involved. 

The  record  contains  the  substance  of  all  the  testimony,  from  which 
it  appears  that  plaintiff  derived  title  from  thejieirsj)j^  I^une„McLeod, 
to  whom  a  conveyance  was  made  by  Eliza  R.^lcLeod^in  1862.  Eli^a 

If     »    ^  *  So  also  in  Cullen  v.  Sprigg,  83  Cal.  56,  23  Pac.  222  (1S90). 

/j    /  iy^'  5  The  balance  of  the  opinion  relating  to  other  points  is  omitted. 

f\  ^  ®  Portions  of  the  opinion  relating  to  other  matters  are  omitted. 


a 


$t 


Ch.3) 

N 


THE  PROPERTY  CONVEYED 


403 


R.  McLeod  being  then  in  possession,  and  the  apparent  owner.  The 
d e f endant  claims  title  by  adverse  possession,  and  also  claims  that-by 
a  subsequent  conveyance  to  him  by  Eliza  R.  McLeod  of  lot  No.  _293 
the  title  passed  to  him,  and  in  this  connection  contends  that  the  deed 
to  Laurie  IMcLeod  contained  no  sufficient  description  of  any  prop- 
erty, and  that  the  record  of  the  deed  was,  therefore,  no  notice  to  him 
of  any  right  in  Laurie  McLeod.     *     *     * 

As  the  deed  to  Laurie  McLeod  was  first  recorded,  and  as  defendant 
claims  it  in  fact  read  when  executed,  the  description  of  the  land  was 
as  follows: 

"Beginning  on  Market  street,  between  the  lot  hereby  intended  to  be 
conveyed  and  a  lot  confirmed  by  the  government  of  the  United  States 


404  DERIVATIVE  TITLES  (Part  2 

to  Ambrose  R.  Davenport;  tlience  north,  62  degrees  15  minutes  west, 
158.96  feet;  thence  south,  31  degrees  west,  60  feet;  thence  south,  62 
degrees  15  minutes  west,  158.96  feet,  to  Market  street;  thence  along 
said  street  north,  27  .''^degrees  55  minutes  east,  to  the  place  of  begin- 
ning." •  e. '^■-'  " 

Was  this  a  sufficient  descriptiont_OjLjguist_the  deedJb-e-ireated_as  a 
nullity  ?  The  starting  point  is  definite.  The  first  hne,  to  point  "b," 
is  also  certain,  as.  is  the  line  between  points  "b"  and  "c."  But,  if 
the  direction  of  the  next  line  is  followed  as  given  in  the  instrument, 
the  terminus  is  at  "e,"  and  tlie  line  named  in  the  succeeding  portion 
of  the  description  would  end  at  "f."  But  the  course  given  after  reach- 
ing point  "c"  is  not  the  only  means  of  identification  adopHdT"  ThaCline 
is_described  as_tenninating  at  Market  street.  If  we  exclude  the  words 
indicative  of  the  direction  of  the  line,  and  carry  the  line  in  the  most 
direct  course  to  Market  street,  we  have  not  only  a  line  answering  to 
the  other  terms  of  the  deed,  but  one  which,  with  its  extension,  incloses 
something,  which  is,  by  the  terms  of  the  deed,  "a.  lot  intended  to  be 
conveyed,"  and  which,  to  answer  the  terms  of  the  portion  of  the  de- 
scription relating  to  the  starting  point,  must  lie  next  to  "a  lot  confirmed 
by  the  government  of  the  United  States  to  Ambrose  R.  Davenport." 
To_niakethis  clearer,  the  deed  contains  the  statement  that  from  the 
terminus  of  the  third  llnenamed  in  the  description  the  boundary  shall 

extend  along_Market~street_to  the place  of  beginning.     We  think  the 

intent  of  the  grantor  is  clear,  and  that  the  deed  is  not  a  nullity  for 
want  of  a  sufficient  description_;__See  Anderson  v.  Baughman,  '7  Mich. 
69774  Am.  Dec.  699 ;  CoopeTvrBigly,  13  Mich.  463  ;  D wight  v.  Tyler, 
i:,  49  Mich.  614,  14  N.  W.  567. 

•'  A  number  of  defendant's  points  depend  upon  this,  and  it  becomes 

unnecessary  to  treat  in  detail  some  of  his  assignments  of  error.  .  The 
deed  be.irg  -^^^Ij^j  to  convey  the  laod^the  recoiul-was  notice  to  subse- 
•^  quent  purchasers. 

One  of  the  conveyances  under  which  plaintiff  claims  contained  a 
description  as  follows: 

"A  lot  60.  feet  wide  on  Market  street  and  128.90  feet  deep,  being  the 
north  end  ofjot  293  ia_tliejdllag£-xif  ^laddnac." 

This  is  claimed  to  be  insufficient,  but  we  tUink  there  is  no  mistakmg 
the  land  intended  to_b£.  rnnvpyed      *     *     * 

We  think  no  error  to  the  prejudice  of  defendant  was  committed. 

The  judgment  will  be  affirmed,  with  costs,  and  the  case  remanded.'^ 

■t  See  Newbold  v.  Condon,  104  Md.  100,  64  Atl.  356  (1906) ;  Whitaker  v.  Posteu, 
120  Tenu.  207,  110  S.  W.  1019  (190S) ;  Peoria  Gas  &  Electric  Co.  v.  Dunbar, 
234  111.  502,  S5  N.  E.  229  (190S) ;  Nicolin  v.  Sclmeiderhau,  37  Minn.  63,  33  N. 
W.  33  (1SS7I ;   Mellor  v.  Walmesley,  [19041  2  Cb.  525. 

A  deed  contained  tbe  following  calls:  "Beginning  on  the  southeast  bank  of 
Toe  river,  two  rods  below  the  mill  house,  and  runs  west,  north,  east,  and  south. 
to  the  beginning,  so  as  to  include  the  mill  and  site  and  two  acres  of  land,  it 
being  and  i Deluding  the  land  sold  as  the  excess  of  the  homestead  of  A.  Wise- 
muu."     The  laud  contaiuediii_the>- calls  given  did  not  include  the  sawmill,  nor 


Ch.  3)  THE  PROPERTY  CONVEYED  405 

WHITEHEAD  V.  RAGAN. 
(Supreme  Court  of  Missouri,  1891.     106  Mo.  2.31,  17  S.  W.  .307.) 

MacfarlanE,  J.  The  contest  in  this  case  is  overjhe  location  of  the 
division  line  between  lots  1  and  4  of  Kritzer  and  Ragan's  subdivision 
of  a  part  of  the  east  half  of  the  northwest  quarter  of  section  21.  to:yvn- 
ship  49,  range  33. 

About  the  year  1870  defendant,  Mary  Ragan,  and  one  Virginia 
Kritzer,  being  the  owners  of  the  whole  tract,  had  it  subdivided  into 
seyen  lots  numbered  from  1  to  7.  A  plat  of  the  subdiYi.sion  was  made 
and  recorded.  The  dimensions  of  each  lot  and  the  area  were  marked 
on  the  plat.  Lot  1  is  designated  on  the  plat  as  a  parallelogram,  eleven 
and  thirteen  hundredths  chains  north  and  south,  five  and  thirty-four 
hundredths  chains  east  and  west,  containing  five  and  ninety-four  hun- 
dredths acres.  This  lot  lay  in  the  northwest  corner  of  the  tract.  Lot  4 
lay  south  oi  and  adjoining  lot  1,  but  extending  six  and  sixty-six  hun- 
dredths chains  further  east.  The  north  and  south  line  on  the  west 
side  of  lot  4  as  marked  on  the  plat  was  eight  and  seventeen  hundredths 
chains,  and  the  lot  contained  twelve  and  ninety-two  hundredths  acres. 

On  the  first  day  of  September,  1870,  defen(iant_conveyed,  by  guit- 
claim  deed,  to.  Virginia  Kritzer,  all  her  interest  in  lots  1,  5  and  6,  reclt- 
ing  in  the  deed  that  lot  1  contained  five  and  ninety-four  hundredths 
acres,  "as  will  appear  by  reference  to  the  recorded  plat  of  said  sub- 
division." March  17,  1885,  Virginia  Kritzer  and  husband  conveyed  to 
Larkin  and  Blackmar,  bvyii^^rjai^ty^^dgfid*  lot  1  under  the  following 
description:  "Lot  number  1  in  Kritzer  and  Ragan's  subdivision ^fjLhe 
east  half  of  the  northwest  quarter  of  section  Zi,  townshipjg^range  33,  /,  ^X  ^-  f 
containing  five  and  ninety-four  hundredths  acres  more  or  less,  incjud-  ^  L^f" 
ing  thirty  feet  roadway."  ''  ^'^  \ 

April  22,  1886,  Larkin  and  Blackmar  conveyed,  by  warranty  deed, 
to  plaintiff  Whitehead,  "lofT  in  Kritzer  and  Ragan's  subdivision  in 
east  half  of  the  northwest  quarter,  section  21,  township  49,  range  35,  in 
Jackson  county,  Missouri."  When  he  purchased  he  was  not  shown 
the  corners  of  the  lot,  but  was  referred  to  the  plat  for  quantity,  courses 
and  distances. 

At  the  time  of  plaintiff's  purchase,  lots  1  and  4  were  included  in  one 
inflnsnrel_  Soon  thereafter  defendant  built  an  east  and  west  fence,  as 
she  claimed,  on  the  north  line  of  lot  4  for  the  purpose  of  a  separate  in- 
closure  of  that  lot.    Plaintiff  claims  that  this  fence  is  about  thirty-£ve  ^^U-^^i^    g^ 
feet  too  far  north  and  included  that  quantity  of  lot  1.  to  recover  which    ^  ___^  ^     ^ 
this  suit  is  prosecuted. 

the  gristmill,  nor  the  mill  site.  B^ut  if  the  first  call,  "west."  were -to  be  read 
"^a^t,"  the'descnpI'ioD  wouldlncItTaeTEe-sawmill.  ,arlstmill  {ind  mill  sHS  The 
com-t'held  "west'  should  he  read  as  "east.'  Wiseman  v.  Green,  127  N.  C.  288, 
37  S.  E.  272  (1900).  See  also  Scates  v.  Henderson,  44  S.  C.  548,  22  S.  E.  724 
(1895) ;    Rushton  V.  Ilallett,  8  Utah,  277,  30  Pac.  1014  (1892), 


a^€U,r^ 


\ 


■I     TJ^ 


■B 


JU^^ 


406 


DERIVATIVE  TITLES 


(Part  2 


^ 


An  accurate  mp^gnrpmpflt  of  the  north  and  south  line  of  plaintiff's 
lot  1,  commencing  at  detendant's  fence,  shows  ^l]  j^pr^^^p ■^tinned  short- 
apre  of  thirtv-four  and  fifty-eight  hundredths  feet  as  compare^  wijh 
Hie  "wholeJlength^oQ^^  lot  as_  shown  on~The  j)lat.  All  the  foregoing 
facts  were  shown  by  plaintiff,  and  are  not  disputed. 

Defendant  offered  evidence  which  tended  to  prove  that,  when  the 
subdivision  was  made,  stones  were  planted  to  mark  the  four  corners  qf^ 
1  ot  Ij^that,  after  she  conveyed  her  interest  in  lot  1  to  Kritzer  in  1870» 
the  line  between  the  stones  planted  for  the  southwest  and  soutlieast 
corners  of  lot  1  was  adopted  by  them  as  the  true  division  line  between 
lots  1  and4.  and  was  so  recognized  and  used  until  plaintiff  purchased 
JQt  1  ;  that  the  north  an^south  TThes  of  the  subdivision  on  the  west  side 
were  fifty-one  feet  shorter  than  was  shown  by  the  plat;  and  that  tlae 
division  fence  was  on  the  line  so  marked,  held  and'  recognized. 

The  circuit  court,  upon  this  evidence,  directed  ?  vprHirt  fjnr-plain- 
tiff,  ^Iru&Jiolding  that  the  courses  and  distances,  indicated _up^n__the 
'  pfat.  ^hpu/cj[  prevail  jvvprjjie  lines  actually  s"urveyed  and  rnrnpr«;  f^sjaJj- 
h^lTedr^ 

I.  When  an  authentic  plat  of  a  subdivided  tract  of  land  is  referred 
to  in  a  deed  conveying  a  subdivision  of  such  tract,  the  plat  itself,  in 
legal  construction,  becomes  as  much  a  part  of  the  deed  as  if  it  had 
been  fulJjr'"^'"''poratedln  it.  Dolde  v.  Vodicka,  49  Mo.  100;  2  Devlin 
on  Deeds,  §  1022. 

II.  While  the  deeds,  under  which  plaintiff  claims  title  to  lot  1  in  the 
subdivision,  must  be  construed  as  describing  the  land  conveyed  as  being 
of  the  full  length  shown  by  the  plat,  it  does  not  follow  that  the  particu- 
lars of  the  description  contained  in  the  plat  are  conclusive  of  the  cor- 
rectness of  such  description.  The  plat  is  only  in^en^^d  to  bp  ^  reprp- 
sentation  of  the  actual  survey  as  made  upon  theland  itself.  It -is  in. 
the  nature  of  a  certifiedcopy  of  an  instrument  which  will  be  controlled 
by  the  original.  ISo  it  is  held,  "where  there  are  no  express  calls  that 
determine  a  line  with  certainty,  evidence  aliunde  is  admissible  to  show 
where  the  line  was  actually  run  to  which  the  deed  refers,  or  to  which 
it  must  have  reference ;  and  its  location  so  fixed,  by  extrinsic  evidence, 
will  control  the  courses  and  distances  named  in  the  deed  or  in  the 
survey.  The  right  to  prove  the  true  line  of  the  survey  to  which  the 
deed  refers,  and  which  it  follows,  does  not  depend  upon  the  rules  ap- 
plicable to  ambiguities  in  written  instruments.  *  *  *  It  is  not  a 
question  of  ccmstru(;:tion  but  a  question  oi_£a.ct."  Kronenberger  v. 
^ffner,  44  Mo.  185  So  in  Dolde  v.  Vodicka,  49  Mo.  98,  the  court 
says:  "Had  this  (lot)  been  so  staked  out  in  the  original  survey,  there 
would  be  no  difficulty,  fo.r  the  division  of  the  lines  of  the  lots  would 
then  have  been  actually  located,  and  the  location  must  govern." 

It  is  a  well-settled  rule  of  construction  that  kgaaLU  .and  fi^ed  monu- 
rnents  will  control  though  they  conflict  with  the  courses  and  distances 
called  for  in  the  deed.  Myers  v.  St.  Louis.  82  Mo..  373;  Orrick  v. 
Bower,  29  Mo.  210;  Gray  v.  Temple,  35  Mo.  494;  3  Wash.  Real  Prop. 


Ch.  3)  THE  PROPERTY  CONVEYED  407 

(4th  Ed.)  405.  While  natural  monuments  are  regarded  of  higher  value 
in  determining  boundaries  than  artificial  ones,  the  latter  will  also  con- 
trol courses  and  distances.  "The  order  of  applying  descriptions  of 
boundaries  is,  first,  to  natural  objects ;  second,  to  artificial  marks ; 
third,  to  courses  and  distances  given  in  the  deed."  3  Wash.  Keal  Prop. 
(4tl7^(l.)""405. 

If  the  line  between  lots  1  and  4  was  located,  upon  the  land  when 
surveyed  and  subdivided,  and  can  now  be  ascertained  and  determined,       v/^ 
that  line  will  constitute  the  true  division  line  between  the  lots  though  it 
CQnfl'Ct^Yif4-litJ,;iS.dp'^^^'Pti""  p^iv^"  J"  the  i^lat. 

Where  the  boundary  line  was  actually  located  was  a  question  for  the 
jury,  the  evidence  tending  to  prove  a  conflict  between  the  calls  in  the 
deeds  and  plat,  and  the  survey  as  located  on  the  land.  The  court  com- 
mitted error  in  directing  a  verdict  for  plaintiff,  and  in  refusing  to  sub- 
mit the  issue  of  fact  to  the  jury.  --^~- 

Reversed  and  remanded.    All  concur.*  ( T'*^  ^^>C^^'  J 

LERNED  V.  MORRILL. 

(Supreme  Court  of  New  Hampshire,  1820.    2  N.  H.  197.) 

This  was  a  writ  of  entrv.  in  which  the  demandant  counted  upon  his 
own^seisin  within  twenty  years  and  upon  a  disseisin  by  the  tenant. 

The^ause  was  tried  here  at  April  term,  1819,  upon  the  general  issue, 
when  a  verdict  was  takeii_XQrJli£_d£mtmdant.  subject  to  the  opinion  of 
the  court,  upon  the  following  facts. 

Th^  tenan^.^l^v  deed  dated  March  8,  1806,  conveyed  to  the  demandant 
a  tract  of  l^nH  rjescribed  in  the  deed  as  follows:  "Being  the  westerly 
part  of  lot  No.  2,  and  contaJnin^^SOacres,  beginning  at  the  north-west 
corner  on  Boscawen  line;  then  south  by  Lerned's  land  to  Contoocook 
river  to  a  poplar  tree,  thence  by  said  river  to  a  stake  and  stones,  thence 
northwardly  a  parallel  line  with  the  side  line  of  said  lot  to  a  stake 
and  stones  on  Boscawen  line,  thence  on  said  Boscawen  line  to  the 
bound  first  mentioned."  The  stakes  and  stones  mentioned  in  the  deed 
were  not  erected  at  the  time  of  making  the  deed ;  but  about  eighteen 
months  afterguards,  the  parties  went  upon  the  premises  with  a  sur- 
veyor  and  chain-men  to  run  out  and  locate  the  land,  and  they  erected 
the  stakes  and  stones  at  the  north-east  and  south-east  corners  of  the 
premises.  The  parties  first  measured  the  whole  lot,  divided  it  in  the, 
middle,  anrl  then  mf^asnred  off  ten  acres  from  the  east  half  and  adjoin- 
ing the  west  half,  and  set  up  stakes  and  stones  at  the  north-east  and 
south-easj^^prnprt;  f)f  thp  bnr)  sn  mensured  p ff ,  and  run  the  Ime  from 
one  stake  and  ^tgpes  tn  the  other  and  set  up  stakes  and  stones  at  every 
tally.    The  tenant  immediately  cleared  his  land  up  to  the  line  and  built 

8  See  in  accord  Cit.v  of  Decatur  v.  Niedenneyer,  16S  111.  68,  48  N.  E.  72  (1897) ; 
Olson  V.  Seattle,  30  Wash.  687,  71  Pae.  201  (1003). 


408 


DERIVATIVE   TITLES 


(Part  2 


a  fence  upon  it.    The  demandant  also  built 


on  the  line. 


ajnd  the  parties  occupied  and  improved  the  land  on  each  side  of  ihat 
line  till  1817.  It  was  proved  that  the  tenant  said  the  demandant  bought 
ten  acres  more  than  half  the  lot.  In  the  fall  oi  1817,  the  defendant 
surveyed  the  lot  and  finding  that  the  demandant  lia(Liiinrp  tlian  ejpjijy 
acres,  removed  the  fence,  and  yyent  into  possession  of  all  but  ei^htv 
acres_,  and  this  action  is  brought  to  recover  the  land,  of  which  the  ten- 
.^nt  thus  took  possession. 

Pp;r  Curiam.  The  question  presented  to  us  in  this  case  for  decision, 
has  long  been  settled,  and  must  now  be  considered  as  entirely  at  rest. 
AA/Kpt^  land  Vf^^A^eenj^rmvfypclhiLui^^  anH_HTP^ descri plioiLoi  Jjie  la n d 
indTe_dee^!_has_refejrerice  to  monument^not  actually  in  exi^tence^ 
tTietime,  but  to  be  erected  by  the  parties  at  a  subsequent  period :  ■\vhgn 
the  pai tics  liave-xmce-Leen  upon  the  land  and  deliberately  prprtprj"  tl^ 
monuments,  they  will  be  as  much  bound  bv  them,  as  if  they^had-b£en 
erected  before  the  deed  was  made.  In  this  case,  there  was  a  reference 
in  the  deed  to  monuments  not  actually  existing  at  the  time,  but  the 
parties  soon  after  went  upon  the  land  with  a  surveyor,  run  it  out,  erect- 
ed monuments,  and  built  their  fences  accordingly;  and  this  is  not  all. 
T^ev  respectivelv  pccupied  the  land  according  to  the  line  thus  estab- 
lished, for  nearly  ten  years.  And  there  is  now  no  evidence  in  this  case 
of  any  mistake  or  misapprehension  in  establishing  the  line.  There_is 
no^  pretence  that  the  tenant  _could  lawfully  remov^__moiuiments  tlius 
deliberately  erected_and  so  long^ acquiesced  in. 

His  claim  to  the  demanded  premises,  for  ought  that  appears  in  this 
case,  is  without  any  foundation  whatever,  and  there  must  be  judgment 
for  the  demandant."  f  ^jui^.  ^"^^ <■»*'*     ^  ) 

h/appjL4jL<      BURKHOLDER  V.  MARKLEY. 

Y-  ,^  ,,  ^  ,  . ,-     .  (Supreme  Court  of  Pennsylvania,  ISSl.    9S  Pa.  37.) 

Error  to  the  Court  of  Common  Pleas  of  Lancaster  county;  of  May 
Term,  1881,  No.  74. 

Trespass  vi  et  armis,  quare  clausum  f regit,  by  Jacob  Markley  against 
M.  J.  Burkholder,  for  entering  on  tlie^aTntiff  s  land  aijdigarinzjlewn 
a  fence.  Plea  not  guilty,  and  liberum  tenementum. 
""On  tHe  trial,  before  Livingston,  P.  J.,  the  following  facts  appeared : 
The  plaintiff  and  the  defendantwere  owners  of  adjoining  tracts  of 
land,  file  location  of  the  division  line  between  which  \yas  the  subject  of 
this  dispule!  "Both  clamied~IifTe  by  niesne  jconve^iauces  from  vSamuel 
Mbyen  The  descriptions  in  all  the  deeds,  under  which  both  parties 
claimed  contained,  inter  alia,  the  following  courses  "STid  distances : 
"Thence  by  other  land  of  said  Samuel  Moyer,  north,  seventy-five  de- 
grees west,  three  perches  and  four-tenths,  to  a  post,  thence  by  the  same 

9  Makepeace  v.  Bancroft,  12  Mass.  469  (1815),  ace.  Cf.  Cleavelaud  v.  Flagg,  4 
Cush.  (Mass.)  76  (1849) ;    Miles  v.  Barrows,  122  Mass.  579  (1S77). 


L^c  (L{_ 


Ch.  3)       '  THE  PROPERTY  CONVEYED  409 

north  nineteen  degrees  east,  tzventy-tJir.ce  perches  and  five-tenths,  to  a 
stone  in  said  road,"  etc.  The  part  in  italics  i'^  the  division  line  in  dis- 
pute. This  was  a  straig^ht  line,  upon  or  near  to  which  a  fence  was 
erected  prior  to  the  time  of  the  conveyances  from  Moyer,  and  which 
had  remained  standing  until  a  portion  of  it  was  torn  down  by  the  de- 
fendant.   It  wasjiotj  however,  alleged  in  the  narr.  to  be  a  line  fence. 

Upon  a  recent  survev  of  the  Burkholder  tract,  it  was  found  that  the 
line  aTTTescnbed  in  the  deeds  runs  through  the  corner  of  a  shed  aiiiL£;s- 
ed  to  a  hotel  buildmg-  on  the  land  of  Rurkhnlder,  both  of  which  build- 
ings had  been  erected  by  Moj^^er. 

The  defendant  offered  to  prove  by  Isaac  Gingrich,  his  predecessor 


in  title  and  the  immediate  grantee  from  Moyer  of  the  defendant's 
tract,  that  by  theagreement  of  purrha'^p  het^/ppn  l]ipiself  and  Mover 
the  hoteTand  shed  wp'rp"vv]-|n11y  npnn  thp  trart  purchased  bv  him,  ^^nd 
the  boundary  line  in  question  was  fixed  uj}on  the  ground  by  Mo\-cr  and' 


J-o, 


hjmself  from  twelve  to  eighteen  inches  outside  the  said  shed,  so  that 
the  water  falling  from  the  roof  of  the  shed  would  fall  upon  Gingrich's 
(n|p^efendant's)  land;  that  the  end  of  the  said  line.  ^,^  then  run  hv 
tli^iir' 


th^^urvevor  on  the  p|-round,  was  marked  hyastake  and  not  a  stone; 
and  that  the  line,  as  subsequentlv  described  in  the  deeds,  djljers  from 
that  line  as  so  tixed  and  marked  on  the  ground.  Objected  to;  obiec- 
tion  sustained  and  offer  rejected;   exception. 

The  defendant  also  offered  in  evidence  the  deposition  of  Samuel 
Moyer  and  the  court,  upon  objection,  ruled  out  the  portions  of  it  which 
corroborated  the  facts  stated  in  the  above  offer. 

Verdid:.  guilty ;    damages  assessed  a^$25,  and  judgment  thereon.       "'"'V' 
The  defendant  took  thi'^  y/rit  nf  prfnr^  assio-nin°^  for  error  the  rejection  " 

oj  said  offer,  and  of  the  portions  of  the  deposition. 

Trunkey,  J.  Samuel  Moyer,  by  deed  dated  April  10th,  1865,  con- 
veyed part  of  a  tractj)f  iand^  to  Isaac  Gingrkh^jylTose  title  has  been 
vested  in  Burkholder.  On  the  lOtli  of  May  following,  Moyer  convey- 
ed  another  part"o£said  tracjto  David  ^ber,  wjiich  part  is  now  vested  /  A 
in  Markley.^  The~line  betw'een  tli'ese  parcels,  being  the  one  in  dispute,  I  /V^-**-/^ 
is  described  in  the  deeds  as  running  from  a  post  north  nineteen  de- 
g^;ees_ea^Jweiit^rtl\ree_£grpiLes.And  fiyert^ 

Both  parties  agree  that  this  is  a  straight  line.  They  also  agree  that  a 
shed,  built  before  Moyer  conveyed,  is  still  standing  where  it  did  at  the 
time  of  the  conveyances.  Markley  .claims .that,  the  Hjne,  ascertained 
from  the  courses  and  disiances  jet  put  in  the  deeds,  passes  thro^h 
that^shed_so  that  a  portion  of  it  is  on  his  land.  Burkholder  claims  that 
after  Moyer  had  orally  agreed  to  sell  to  Gingrich,  and  before  he  made 
tfie  deed  to  him,  there  was  an  actual  survey,  that  the  line  ran  from  a 
post  direct  to  a  stake,  not  jess  than  twelve  nor  more  than  eighteen  ^    ^ 

inrhe.s  from  the  .shed,   and   thnt  the  land   was  sold  and  bought  by  The       OjPji^^^,^ 
parties  with  reference  to  said  line,.    If  Durkholder  s  clann  be  true,  then, 
so  far  as  tlie  courses  and  distances  in  the  deeds  show"  a  line  differmg 


Jfi^ 


dUjJf-((lSi 


410  DERIVATIVE  TITLES  (Part  2 

The  lines  run  and  marked  on  the  ground  are  the  true  survey^  and 
when  they  can  be  found  will  control  the  calls  for  a  natural  or  other 
fixed  boundary  ;   and  also  constitute  the  boundariesln]lhe  ^rant^wSEre 


they  dlTFEflrom  those  produced  b^_the_cgurses  and  distances  stated  in 
the  patent.  This  weli-settled  rule  in  cases  oi  lands  granted  by  the  com- 
monwealth, applies  to  grants  by  individuals.  Blasdell  v.  Bissell,  6  Pa. 
258;  Craft  v.  Yeaney,  66  Pa.  210.  In  Craft  v.  Yeaney  the  testimony 
of  the  original  grantor  was  received,  the  court  below  saying,  "while  it 
is  true  the  deed  cannot  be  changed,  or  construed,  or  affected  by  parol, 
it  is._,competent  to  prove  oiitside  the  deed  that  the  calls  in  the  deed  are 
not  on  the  ground,  or  that  a  line  or  boundary  called  for  in  the  deed  is  jn 
a  different  place  from  that  contracted  for  by  the  parties,  or  that  what 
is  caTTed  tjie  eastern  line  of  warrant  No.  4019  is  not  at  the  place  sold 
and  Ijouglit  to."    Ag^d  that  was  held  .not_tp^b^.£i]:£^r. 

Where  a  deed  was  for  fifty  acres  of  land,  the  quantity  intended  by 
both  parties,  described  by  existing  lines  on  three  sides,  and  called  for 
a  south  "line  to  be  run  so  far  south  from  the  north  line,  and  parallel 
therewith,  as  to  include  fifty  acres  of  land,"  it  was  held  compej^nUto 
prove  that  the  line  agreed  upon  by  the  parties  as  the  south  line  was__a 
fence,  thoUghTt  differed  from  the  onjg^produced  by  the  description  ip 
the  deed.  THe"~gTantee  objected  to  the  deed  because  she  did  not  know 
that  fifty  acres  would  run  to  the  fence,  but  the  grantor  assured  her 
that  fifty  acres  would  reach  the  fence,  that  the  deed  embraced  it,  and 
she  accepted  the  deed.  I^was  said  to  be  of  no  consequence  whether 
the  grantor  was  aware  that  he  was  making  a  misrepresentation^Jj^y 
it  the  grantee  did  what  she  woumiot  h"ave~done  and  was_iniured. 
fiartle  v.  Vosbury,  3  Grant,  Cas.  277.    That  decision  rests  on  th_e  prin- 


it 


a  line  on  theground.  fixed  by  the  parties  as  the  one  sold  and 


bought  to.  controT^aTT^raTstances  stated  in  the  deed,  wherever  there 


,^,^:^ 


is  fraud  or ~mislakg.  The  cases  enforcing  and  illustrating  the  applica- 
tion  of  this  principle  are  numerous ;  it  would  be  idle  to  cite  additional. 
It  may  frequently  occur  that  the  location  of  a  line,  which  was-asreed 
upon,  cannot  be  dete^rnnned  for  want  of  evidence.  In  such  case_.the 
location  is  settled  by  the  deed.  The  lines  produced  by  the  calls,  courses 
and  distances  IrT the  deed,  are  taken  as  correct,  unless  there  be  prooj 
oTa  different  line  on  the  ground,  which  the  grantor  and  grantee ^^g^d 

At  the  trial  of  this  case  considerable  evidence  was  rightly. jceggivgd, 
tending  to  showtliat  the  parties  fixed  a  line  at  the  time  of  the  sale,  and 
its  location  on  the  ground.  Otherj)ertinent  and  material  evideri(;:£_iQr 
the  ^ame  purpose  was^^rejected.  and  for  this  the  judgment  must  be 
reversed.  ~We"are  of  opinion  that  all  of  the  offers  of  testimony,  set 
forth  in  the  several  assignments  of  error,  should  have  been  admitted. 

Judgment  reversed,  and  venire  facias  de  novo  awarded.^" 

10  See  Emery  v.  Fowler,  38  Me.  99  (1854) :  Baxter  v.  Wilson,  95  N.  O.  137 
(1886) ;    Kashman  v.  Parsons,  70  Conn.  295,  39  Atl.  179  (189S). 


Ch.3) 


THE  PROPERTY  CONVEYED 


411 


HALL  V.  EATON. 
(Supreme  Judicial  Court  of  Massachusetts,  1885.    139  Mass.  217,  29  N.  E.  6(50.) 

Writ  of  Entry  to  recover  a  loLPLllQdJn„the_dt)L.QLWcuxester^ 
Plea,  nul  disseisin.  Trial  in  the  Superior  Court,  without  a  jury,  be- 
fore Blodgett,  J.,  who  allowed  a  bill  of  exceptions,  in  substance  as  fol- 
lows : 

The  land  in  dispute  was  ^  triangular  tract  on  the  northerly  ^de^  of 

Dix  Street,  marked  on  a  plan  used  at  the  trial,  a  copy pjwhjgJL  is 

printed  in  the  margin,  as  "Demanded  Premises."  It  appeared  that  all 
the  land  lying  next  northerly  of  Dix  Street  and  between  Wachusett 
Street  on  the  east  and  Gouldincr  Street  on  the  west  was_formerly  own- 
ed by  Henry  Goulding,  and  was  divided  into  lots  and  sold  byjiis- ex- 
ecutors.    The  tenants'  Jal  was  at  the  corner  of  Dix  Street  and  Wa- 


chusett  Street,  and  tne  denj^ndant's  lot  was  part  of  the  lot  next  west- 
erly^ and  tlT£  question  was'as  to  the  westerly  boundarv  of  the  tenant 
lot  and  the  easterly  boundary  of  the  demandant's  lot,  under  the  follov 
ing  deeds 

On  February  20,  1869,  Gouldin^'s  executors  conveyed  the  corner  lot 
to  Blackmer  and  Kellev.  (under  whom  the  tenants  derive  their  title,) 
by  the  following  description  :  "A. certain  lot  of  land  situated  in  the  cit 
of  Worcester,  on  the  westerly  side  of  Wachusett  Street  and  northerly 
side  of  Dix  Street,  bounded  and  described  as  follows,  to  wit :  begin 
ning  at  the  southeasterly  corner  of  the  lot  conveyed,  and  at  the  inter- 
section of,  said  streets ;  thence  running  northerly  by  Wachusett  Street 
one  hundred  and  thirty-four  feet,  to  land  of  the  heirs  of  Henry  Gould- 
ing; thence  running  westerly  by  land  of  the  heirs  of  said  Goulding, 
sixty   feet;    thence  running  southerly  by  land  of  said  heirs  aL  ri_£ht 


itherly  by  land  of  said  heirs  at  rigl' 
hundred  and  twenty-fiye   feet  to  Di 


angles  to  said  Dix  Street  one  hundred  and  twenty 

(^t^pT^iT^pr./^  nipnincr  easterly  bv  Dix  Street  si vty-one  feet  more  or 
less  to  the  first-mentioned  bound  rontainingr  7770  feet  more  or  less." 
On  October  8,  1869,  said  executors  conyeyed  the  residue  of  the  land 


411 


DERIVATIVE   TITLES 


(Part  2 


h(^^w,g^rij_hp  tprmnt«^'  1n(  and  Gouldino^  .Strept  tn  nne  Kiri?T.  by  a  deed 
•which  contained  the  foUowinig  description :  "Lot  of  land  on  the  north- 
erly  side  ot  Uix  SFreet,  bounded  as  follows :  beginning  at  the  south- 
easterly corner  of  the  lot  at  a  corner  of  land  of  Kelley  and  Bla^kjQier 
ind  running  westerly  on  Dix  Street  one  hundred  and  eightv^^^  to  a 
new  street  about  to  be  made :  thence  turning  and  runnnig  northerly  on 
said  new  street  one  hundred  and  twelve  and  a  half  feet,  to  land  belong- 
ing to  the  estate  of  the  late  Henry  Goulding;  thence  turning  and  run- 
ning easterly  on  said  Goulding  estate  one  hundred  and  eighty  feet,  to 
land  of  Kelley  and  Blackmer  ;  thence  turning  and  running  southerly  on 
land  of  said  Kelley  and  Blackmer  one  hundred  and  twenty-five  feet, 
to  tlie  place  of  beginning  on  said  Dix  Street. 

It  was  agreed  that  the  r[^\v  afreet  referred  fn  \vas  Gjg^ldinp^  Street. 
and\he  corner  of~Goulding  Street  and  Dix  Street  was  a  known  and 
.fix"e3rbound. 
m^Jm    On  May  8,  1871,  King  conveyed  to  the  dernandant  a  pnrt  of  said  Lnf. 
[^^     fortv-five  feet  wide  on  T)ix  Str-eet.  hounded  as  Follows  T  "Beginning  at 
the~sbiftheasterly  corner  thereof  at  corner  of  land  of  Kelley  and  Black- 
mer, and  at^  a  point  one  hundred  and  eighty  feet  distant  from  the  ea^t- 
e.rlv  line  of  Goulding  Street,  thence  northerly  on  land  of  Kelley  and 
\  Blackmer  one  hundred  and  twenty-five  feet,  to  land  of  the  estate  of 
I  Henry  Goulding;  thence  westerly  on  said  land  of  Goulding  forty-five 
feet ;  thence  southerly  and  parallel  with  the  first-described  line  one  Ixun- 
I  dred  and  twenty-five  feet  more  or  less,  to  said  Dix  Street  ;^hence  eagt- 
^  (^r]y  on  Dix  Street  forty-five  feet,  to  the  place  of  beginning." 

The  corner  of  Dix  Street  and  Wachusett  Street  was  a  known  and 
fixed  bound,  and  the  northerljj  line  of  Dix  Street  was  a  known  and 
^xed  line. 


'J 


If  the  thij^^m^described  in  the  deed  of  the  executo_rs.  to  Blackrner 


and  Kelley  is  drawn  at  rio^ht  an.jgles  to  Dix  Street,  it  strikes  a 


^^-^^        _^ ^_ 

ic/hT  ^^^O^'JU  Dix  Street  eighty  feet  and  fifty-two  one-hundredths  of  a  foot  from 

Imj  y^Aa^**-*'"^  Wachusett  Street,  and  one  hundred  and  sixty-one  feet  and  ninetv-four 

ij^f^  one-hundredths  of  a  foot  from  Goulding  Street.    In  such  case,  the  ten- 

\       ^  ants'  line  on  Dix_Street  is  ..eighty  feet_and  fifty-two  one-hunclr'e^thg^of 


rr^ 


^ 


^^</r^ 


^ 


a  foot  in  length,  and  is  shown  by  the  westerly  dotted  line,  and  theirjot 
contains  9101  squarefeet. 

If  the  thiij^jyi^^escribed  in  said  deed  to_^lackmer  and  Kelley__is 
drawn  so  as  to  strike  Dix  Street  one  hundred  and  eighty  feet  easterly 
from  Goulding  Street,  the  tenants'  line  on  Dix  Street  is  sixty  feet  and  a 
hal.f  in  length,  and  their  lot  contains  exactly  7770  square  feet. 

The  demandant  ofifered  evidence  tending  to  show  that,  before  the 
several  lots  were  sold  by  the  executors  of  Henry  Goulding,  they  pre- 
pared a  plan  of  them,  which  was  produced  at  the  trial ;  and  it  was  testi- 
fied by  one  of  the  pxerntnrg;  that  the  Jots  were  sold  bv^said  plan,  but 
there  were  no  nionuments  at  the  corners  of  the^c^^— ^^^Iien-the  deeds 
were  given  ?m3pere  was  no  e~i(lei-|rp  that^ ^Blackmer  and  Kellev  saw 
tlie  plan  beiore  they  took  their  deecL    Said  plan  showed  the  tenants'  lot. 


Ch.  3)  ^-    THE  PROPERTY  CONVEYED  413 

to  have  a  line  of  only  sixty  feet  and  a  half  on  DIx  Street^  and  showed 
that  the  westerly  line  did  not  make  a  right  angle  with  Dix  Street. 

The  demandant  also  offered  evidence  tending  to  show  that,  in  the 
year  1876.  he  erected  a  fence  between  his  said  lot  and  the  tenan1„'^Mnt 
(KeJley,  who  had  bought  I!lacl<mer's  interest,  then  being;  the  mvner.  of 
the  te_n ants'  lot,)_and  by  Kellcy's  consent  it  was  placed  on  the  line  a9>-y  ,       fi  ^.^^^ 
claimed  bv  the  demandant,  and  remained  there  several  v^^s,  and  until   ^^  "^ 
removed  bv  the  tenants  a  short  time  before  this  suit  was  brnno-ht 

The  demandant  asked  the  judge  to  rule  that  it  was  a  question  of  fact, 
on  all  the  evidence,  whether  the  tenants'  westerly  line  was  to  be  drawn 
at  right  angles  to  Dix  Street,  and  asked  a  finding  in  fact  that  it  was  to    f ^  v/ 

be  drawn  at  an  angle  to  said  Dix  Street,  so  as  to  strike  said  street  sixty    [(jtf^/^^^ 
and  a  half  feet  from  Wachusett  Street.    The  judge  ruled,  as  matter_of  q^    m       ^j^ 
law.that  the  said  line  was  to  be  drawn  a^angh^ngle  to  Dix  Street,/y^     >,^ 
without,  regard  to  the  evidence  outside  of  tn^^ea?;  ana  lound  for  the   ^^  >t«*'-*'*'^ 
tenants.    The  demandant  alleged  exceptioii_s-  C^^-y^^^*-^ /^^ 

W.  Allen,  J.  The  courses  of  the  lines  on  Wachusett  Street  and 
Dix  Street  are  fixed  on  the  land,  and  fix  the  angle  contained  by  them. 
Th.£££US_.pothing  on  the_land  to  fix  the  course  of  the  second  or  of  the 
third  Ijne^fqrjt  does  not  appear  that  the  line  of  the  land  of  the  heirs 
of  Henry  Goulding  mentioned  is  fixed.  The  description  in  the  deed 
gives  the  length  of  the  first,  second,  and  third  lines,  which  there  is  noth- 
ing to  control,  and  the  angle  contained  by  the  third  and  fourth  lines. 
There  is  go  difficultv  in  locating  this  description  upon  the  land,  and  it 
makes  the  length  of  the  fourth  line  eightv  feet  and  fifty-two  one- 
tiundredths  of  a  foot,  and  the  contents  of  the  lot  9101  scuare  feet.  The 
description  iii  The  deed  gives  the  length  of  the  fourth  line  as  "si.xty- 
one  feet  more  or  less,"  and  the  contents  of  the  lot  as  "7770  feet  more  or 
less."    Thjs  discrepancy  of  one  third  in  the  length  of  the  front  line  of  *       "J 

the  lot,  and  one  fifth  in  its  content-^^  could  not  have  been  intended,  al-  5<<a>c^  /i.*-*-*^ 
though  the  length  and  dimensions  are  only  approxiniat^ely  given,  a.nd  /^^aM  a^^Cu^^ 
i t__is  obvious  t,hqt  thf-rejs_a.  mis{:ake^^ither  in  the  angle  given,  or  in^  the 
Ifngth  of  the  fourth  line. 

We  do  not  regard  the  statement  of  tlie  quantity  of  the  land  as  very  7 

material.  It  is  the  computation  of  the  contents  of  the  figure  described 
in  the  deed,  but  which  cannot  be  produced  on  the  land.  The  fact  that 
to  give  exactly  the  quantity  of  land  mentioned  when  the  other  particu- 
lars of  the  description  are  applied  to  the  land,  the  third  line  must  inter- 
sect the  fourth  at  an  obtuse  ano-le.  and  the  fourth  line  must  be  sixtv 
feet  and  a  half  in  leno-th,  p^oes  to  show,  what  is  otherwise  sufficientlv 
apparent,  that  no  such  discrepancy  in  the  length  was  intended.  Xhere 
was  a  mistake  eitlier  m  the_imgl£^iven  or  in  the  length  of  the  fourth 
line-  they  cannot  both  be  applied  to  tli£-land.  though  either  of  them/'  ""^ 
mayl>e.  and  the  question  is  which  must  be  rejected.  [    "^         ) 

The  question  to  be  determined  is  theiiitentiori_shown  in  the  languageV^J___,/ 
of  the  deed,  in  the  light  of  the  situation  of  TITe  land  and  the  circum-  , 

stances  of  the  transaction,  and  sometimes  with  the  aid  of  declarations 


414 


DERIVATIVE  TITLES 


(Part  2 


and  conduct  of  the  parties  in  relation  to  the  subject-matter.    The  rule, 
/^V)     ILi     that  monuments,  in  a  description  in  a  deed,  control  courses  and  dis- 


% 


^ 


dances,  is  founded  on  the  consideration  that  that  construction  is  more 
tl  vj^.xtr^*'*^  likely  to  express  the  intention  of  the  parties..  The  intention  to  run  a 
-^  line  to  a  fbced^bject  is  more  oDvious,  and  the  parties  are  less  likely  to 

be  mistaken  in  regard  to  it  than  in  running  a  given  distance  or  by  a  giv- 
en course.  But,  where  tjie^circumstances  show  that  the  controlling  in- 
tention  was  otherwise,  the  rule  is  not  applied.  Davis  v.  Rainsford,  17 
Mass7  207;  Parks  v.  Loomis,  6  Gray,  467;  Murdock  v.  Chapman,  9 
Gray,  156.  So  far  as  the  question  is  as  to  the  relative  effect  to  be  given 
to  a  course  and  a  distance,  neither  has  in  itself  any  advantage  over  the 
other  as  showing  a  governing  intent.  Whether  the  one  in  a  given_£ase 
shall  outweigh  the  other,  as  showing  the  intention  of  the  parties,  must 
depend  upon  the  circumstances  existing  at  the  time. 

The  angle  formed  byTDix  Street  and  Wachusett  Street  is  an  acute 
angle ;  the  lot  was  a  corner  lot,  the  front  on  Dix  Street.  In  laying  it 
out,  it  would  be  natural  either  to  have  the  third  line  in  the  description 
parallel  to  Wachusett  Street,  or  at  a  right  angle  with  Dix  Street.  The 
latter  is  for  the  advantage  of  the  purchasers.  The  deed  shows  that 
the  parties  had  that,  and  not  the  other,  in  mind.  Not  only  is  the  third 
line  not_said  to  Jbe_parallel  with  Wachusett  Street,  but  it  ap^ars.-t£at 
it  "wasnot  intended  to  be.  I'he  parties  understood  that  the  angle  at 
the  corner  of  the  streets  was  an  acute  angle,  and  that  making  the  other 
angle  on  Dix  Street  a  right  angle,  would  require  the  line  on  that  street 
to  be  longer  than  the  rear  line,  and  they  said  that  the  angle  should 
be  a  right  angle,  and  therefore  that  the  line  should  be  longer.  It  was 
not  merely  giving  a  course  to  the  tliird  line,  but  it  was  expresslv  fixing 
the  shape  of  the  lot.  The  length  of  the  fourth  hne  was  left  indefinite, 
and  to  be  determined  by  the  angle  which  was  fixed.  It  is  true  that  the 
jSfiven  angle  requires  a  longer  line  than  was  supposed ;  but  the  angle 
and  the  shape  of  the  lot,  and  not  the  length  of  the  line,  appear  to  have 
been  the  controlling  considerations.  See  Noble  v.  Googins,  99  Mass. 
231. 

It  is  contended  by  the  plaintiff,  that  it  is  a  case  of  latent  ambiguity, 
which  may  be  explained  by  parol  evidence.  If  the  difference  were  be- 
•  — T\.  tween  a  given  course  of  the  third  Hne  and  measurement  of  the  fourth, 
it  might  present  such  a  case,  but  neither  is  given.  The  course  of  the 
third  line  was  not  run,  but  it  was  to  intersect  Dix  Street  at  ^  right-an- 
gle;  the  fourth  line  was  not  measured,  but  its  length  was^stimated^nd 
apparently  estimated  as  the  distance  between  the  point  where  the  third 
line  must 'meet  Dix  Street  to  form  a  right  angle  with  it_and__th.e  first 
corner.  A  mistake  was  made  in  the  estmiate  (^\  the  distance.  It  would 
seem  that  the  anglewa^oTnalerTM^~particuTar  Th"  the  description  of 
the  lot,  that  the  expressed  intention  in  regard  to  it  could  not  be  made 
doubtful  by  a  mjstake  in  the  estimate  of  the  length  of  the  fourthjine, 
which  was  determined  by  it ;  but  it  is  not  necessary  to  decide  this.  As, 
V     the  case  stood  at  the  trial,  and  upon  the  evidence-JifiEered,  the  cou^t 


^i^ 


^iJ^ 


Cll.  3)  THE  PROPERTY  CONVEYED  415       O  ,^^^^ 

prop.eiiv  ruled  t^r^^  ^g  ^^\\f^  ^f  1,1^,  t1-|^  third  line  \^^^  fn  V»p  ^t  a  right  f^f  (r^./fiA4^ 
angle  with  Dix  Street,  without  reg^nrd  to  th(^  evidence  outside  the  deed.  ,  ,         p        j 

The  plaintiff  relied  upon  evidence  that  the  executors  of  Goulding,     ^-"^^  '— <nz«v 
before  the  lot  was  sold,  made  a  D]^n  of  this  and  other  lots,  by  whicli  it       I        a  iv 
appeared  that  the  fourth  line  was  sixty  feet  and  a  half  in  Icnglh,  and 
that  the  ang^le^jormed^  b}' the  third  line  and  Dix  Street  was  an  obtuse   '\j/yi.c/^Jt  Vati- 
angle.    This  plan  is  not  referred  to  in  the  deed^  and  was  not  seen  by  the 
purchasers.    The  only  effect  of  this  evidence  would  be  to  show  that  tlie 
grantors  knew  that  the  lot  described  in  the  deed  did  not  correspond 
with  the  one  on  the  plan,  and  did  not  inform  tlie  grantees. 

Eight_months  after  the  conveyance  to  Blackmer  and  Kelley;,  the  ex- 
ecutors  conveyed  to  one  King  the  adjoining  lot  on  Dix  Street,  extend- 
ing westerly  to  a  way  to  be  laid  out,  called  Goulding  street,  bounding 
easterly  on  the  land  of  Blackmer  and  Kelley  and  the  line  on  Dix  Street, 
and  the  rear  lines  being  each  one  hundred  and  eighty  feet  in  length. 
This  evidence  may  tend  to  show  that  the  executors  intended  that  the 
third  line  of  the  Blackmer  and  Kelley  lot  should  be  parallel  with  Gould- 
ing Street,  but  such  intention  was  not  known  to  Blackmer  and  Kelley, 
and  was  not  expressed  or  indicated  in  the  deed  to  them.  The  de- 
mandant also  relied  upon  evidence  that  King  afterwards  conveyed  to  $ 
the  demandant  alot  adjoining  Blackmer  and  Kelley.  jjescribed  as  be-  ^ 
ginning  at  a  corner  of  their  land  on  Dix  Stree^ne  hundred  and  eighty  i 
feet  from  Goulding  Srreet..and  that  several  years  after,  and  seven  years 
after  tlie  conveyance  to  Blackmer  and  Kelley,  and  after  Kelley  had  ac- 
quired Blackmer's  interest,  the  demandant  put  up  a  fence  between  his 
lot  and  Kelley's,  and,  with  Kelley's  consent,  put  it  on  the  line  now 
claimed  by  the  demandant,  where  it  remained  for  several  years. 

We  do  not  see  that  any  of  this  evidence  is  competent  to  control  the 
construction  indicated  by  the  deed  itself.  I.t  is  not  sufficient  to  show 
a.  practical  construction  of  the  deed  by  the  parties  to  it,  nor  an  adrnis- 
sion  bv  the  tenants'  grantor  which  can  bind  the  tenants,  nor  a  mutual 
agreement  as  to  the  boundary  and  occupation  accordingly.  See  Liver- 
pool  Wharf  v.  i^'rescott,  7  Allen,  494;  Miles  v.  Barrows,  122  Mass.  579; 
Lovejoy  v.  Lovett,  124  Mass.  270.  Whether  evidence  of  the  construc- 
tion of  the  deed  by  the  acts  of  the  parties  by  locating  the  third  line  on 
the  land,  or  fixing  the  point  of  its  intersection  with  Dix  Street  by  a 
monument  or  otherwise,  would  present  a  question  for  the  jury,  we 
need  not  consider,  because  the  evidence  offered  was  not  suffiGient_j:o 
show_such  acts,  nnd  <h'°  nn^'^t'^n^resented^wasone  of  law  upon  the 
Q^nstruction  of  thp  rlpprl 

A  majority  of  the  court  are  of  opinion  that  the  ruling  excepted  to 
was  correct. 

Exceptions  overruled.         ^^u  *->  *fni  t, ^yC^^Ux-f^CJi/y^  . 


DERIVATIVE  TITLES 


(Part  2 


TEMPLE  V.  BENSON. 


/ 


le  Jndicinl  Court  of  Massachusetts,  1912.    213  Mass.  128,  100  N.  E,  Go.) 

Fejition,  filed Jn  the  Land  Court  on  September  8,  1910,  for  the  reg- 
istration of  the  _titlej;o  certain  land  on  East  Quincy  Street  itl_^JorLh 
Adams. 

In  the  Land  Court  the  case  was  heard  by  Davis,  J.  The  only  issue 
at  Vie  trial  was  the  position  of  the_sQutherly  line  of  the  petitioner's  land 
as  sfhmn  on_  the  sl<etch  on  tlie. nexL^page. 

In  19^0  one  Sylvester  A.  Kemp  owned  land  which  included  the  locus 
nd  landShnmediately  east  and  south  of  it  shown  on  the  plan  as  land 
o*f  the  resptsmdent,  and  conveyed  to  one  Josiah  Tinney  the  locus  and 
the^lot  east  ofot  by  a  deed  with  the  following  description:  "Situate 
nearv,  the  North  village  of  North  Adams,  bounded  and  described  as 
follows,  to  wit :  Coh^Q^ncing  on  the  squth_side  of  East  Quincy  Street, 
"^n^r^^llXi^  at  the ^22ijlL^i^^ -^"^^^^^^^^°"  with  Me_chanic  Street  (itow 
Summit  Avenue),  so_calledjNthence^soutli  12  degrees  west  on  the  west 
side  of  a  xQntemplated  street,  sj^rod^  tp_  a  stake,  and  stones ;  thence 
wester]^ejght'rad^^ail|L  of  J.  MS|Uanedv ;  thence  northerly  on  lanas 
q^^^^^^TTa^dy  and  M rs.  Porter'^seven'rods  to  East  Quhicy  Street; 
theiice  easterly  on  the  south  side  of  said  sheet,  about  eight  and  ,ope- 
fgurth  rpdSj  to  the  place  of  begin ni,^g." 

The  same  premises  were  conveyed  by  four  mesne  conveyances  to 
on£  Samuel  Vadner,  who  received  them  in  1885,  all  tlie_degiis_£pn- 
tajning,jlie~&aine  description  as  that  given  above. 

In  1887  Kemp  conveyed  to  the  respondent  land  south  of  that  previ- 
ously described,  by  a  deed  containing  the  following  description :  "^e- 
ginning_on  the  west  side  of  Summit  Avenue,  at  the  southeast  corner 
of  land  of  Samuel  Vadner,  running  westerly  on  the  south  line  of  said 
Vadner's  land,  ei^ht  rods  to  land  of  Charles  Tower  (formerly  of  L-M- 
Canedy) ;  thence  southerlyon  said  Tower's  land,  sixty  feet;  thence_ 
easterly  eight  rods  to  Summit  Avenue,  thence  northerly  on  the  west 
sMe  of  Summit  Avenue,  sixty_feet  to  the  place  of  beginning." 

On  June  1,  1890,  Vadner  conveyed  to  the  respondent  the  lot  east  of 
the  locus  by  a  deed  with  the  following  description :  *'CgnmTencing  _at 
the  northeast,  cornerjjf  lands  of  said  Benson,  on  the  west  side  of  Sum- 
mit Avenue;  thencg  running  northerly  on  the  west  line_  of.  SuQlHHt 
Avenue,  about  six  rods  to  East  Quincy  Street ;  thence  westerly  on 
East  Quincy  StreetT  sixty  feet  to  stake  andstpnes:  thence  southerly  on 
Ijne  parallel  with  the  first  mentioned  line,  about  =i?^  rn'^'=,  t^  i?i"d  of  ^fiid 
grantee;  thenceeasterly  on  land  of  said  JJcnson^  sixty  feet  to  pla^£.  of 
beginmngj.' 

In  1894  Vadner  conyeyed  the  locus^^to  the  petitioner  by  a  deed  con- 
taining the  following  description:  "Eegmnmg  on  the  gnntVi  <;ir1p  nf 
'East  Quincy  Street,  so  called,  at  a  point  ot  its  intersection  witJL  i^^e- 
•chanic  Street  (now  Summit  Avenue),  so  called;  thence  south  twelve 


Ch.3) 


THE  PROPERTY   CONVEYED 


? 


417      jl^  ] 


rpf^ <S  RODS —     Ar" 

•    JL/NE  ACCORDJNG  T£/  FkriTlONER*^  Ci.A»)4. 


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Lm^ACCOROmCt   to  PBTITtOnBR'S    C)LAI^^- 


degrees  west,  on  the  wes^  side  of  a_contemplated  street,  six  rods  to  a 
stake  and  stone's^  thencewesterly  eighFro^s,  to  land  jormerlx  owned 
^bAJ^JSlTCanedy :  thence  northerly  on  said  land  and  land  of  Mrs.  Por- 
ter,> seven  rods  to  said  East  Quincy  Street:  thence  easterly  on  the  south 
AiiS.rKOP. — 27 


418 


DERIVATIVE   TITLES 


(Part  2 


-g^' 


side  of  said  street,  about  eight  and  one- fourth  rods  to  place  of  begin- 
ning, except  what  1  have  sold  pfij^taining'tojJtiis  lot  ^f^  lanid  to  Fred  E. 
Bensonrof^'|ap^^;^oil'^]Ailam^ wi^ degHTdated  JuneTstT  1890." 

"In  ISyTTneither^East  Quincy  Street  nor  Summit  Avenue  was  a  pub- 
lic street.  Kemp  had  opened  East  Quincy  Street  as  a  private  way. 
After  1£79  both^  streets _ffi£re  public  streets,  East  Quincy  Street  being 
two  rods  wide.  The  bill  of  exceptions  states :  "The  point  of  intersec- 
tion  nf  V.^'^f  Qm'nry  Street,  and  Mechanic  Street,  or  Summit  Avenue, 
in  J ulXx_lBZQ,^was  agreed  to  as  the  point  m arked  on  the  annexed  sKetch , 
at, the  northeast  corner  of  the  lot  at  the  intersection  of  ^^'^^  Qninry 
Street  and  Mechanir  St^ppt__anH  has  never  been  changed  and  is  the 
point  of  intersection  of  the  south  line  of  East  Quincy  Street  and  west 
line  of  Summit  Avenue,  as  laid  out  by  the  City  of  North  Adams,  in 
1879." 

The  westerly  boundary  line  of  the  locus  was  fixed  by  a  stone  wall 
wliich  wasjjaraTlel  to  Summit  Avenue. 

The  petitioner  contended  that  the  southerly  line  of  East  Quincy 
Street  as  laid  out  by  NorthAdams^wa?  in  a  Hiff^xenLlocation  fromjjie 
southerly  Jin£_of  East  Qumcy  Street  as  it  was  understood  tn  he  hpfnre 
that  time.  The  respondent  contended  that  that  line  had  not  been 
changed.    Both  parties  offered  evidence  in  support  of  their  contentions. 

The  judge  ruled  as  follows,  subject  to  an  exception  by  the  respond- 
ent :  "The  description  in  the  petitioner's  deed  cannot  as  a  physical 
matter  be  Hterally  applied  in  all  its  details  to  the  ground.  If  the  west- 
erly end  of  the  southerly  line  be  taken  fi*^  rnntpnrlpfj  for  by  the  re- 
spondent at  a  point  on  the  Canedv  la^rl  Hi'^tant  pyartly  seven  rods  frgpj 
the  southerly  line  of  East  Quincy  Street,  then  the  southerly  line  will 
exceed  eight  rods  in  length.  If  on  the  other  hand  the  westerly  end  of 
said  southerly  line  be  taken  at  a  point  on  the  Canedy  land  distant  ex- 
actly eight  rods  from  its  point  of  departure,  on  the  westerly  line  of 
Summit  Avenue,  then  the  westerly  line  on  land  of  Canedy  and  Porter 
will  exceed  seven  rods  in  length.  *  *  *  I  rule  that  the  deed  is  am- 
bigiimisJ' 

Subject  to  an  exception  by  the  respondent,  the  judge  admitted  in 
evidence,  "so  far  as  it  tended  to  show  the  location  of  East  Quincy 
Street,"  a  deed  by  Kemp  to  one  Frost  dated  in  1872.  According  to  the 
description  in  the  deed,  the  north  line  of  East  Quincy  Street  extended 
over  the  east  side  of  Summit  Avenue  and  ran  south  79  degrees  east, 
and  the  street  was  three  rods  wide  through  the  land  of  Porter. 

Subject  to  afurther  exceptionby  the  respondent,  the  judge  allowed 
TinneyTcalled^y  the  petitioner,  to  testlty^^  "that  atlhe  time  he  bo^ht 
hisHand,  previouslxld£Scribed,  from  Kemp  and  before  the  deed  was 
drawn,  he  went  on  the  ground  with  Kemp  ;  tliat  they  began  at  the  north- 
east corner  of  the  lot  he  was  to  buy,  at  the  corner  of  Summit  Avenue 
and  East  Quincy  Street,  and  measured  south  on  Surrtmit  Avenue,  six 
rods ;  that  from  there  they  turned  a  right  angle,  because  Kemp  stated 
he  wanted  'to  measure  at  right  angles  so  thai  all  the  lots  would  come 


Ch.  3)  THE  PROPERTY  CONVEYED  419 

square,'  and  measured  eight  rods  to  the  old  stone  wall  on.Canedy  land; 
that  they  then  measured_.dQ\yn  the  line  of  Canedy  iand-sevea  rods  and 
stopped  there,  in  nrHp]-,  Kpmp  c;nir1  to  leave  room  for  a  street,  Kemp 
stating  he  mi^ht  throw  the  street  to  the  north  or  to  the  south,  and 
that  he  would  deed  by  the  street  so  that  if  the  street  went  to  the  north 
Tmney  would  be  the  gainer ;  that  the  measurements  stopped  about  one 
rod" short  of  the  nearest  wheel  track,  and  tliat  two  or  three  days  later 
the  deed  was  drawn,  ex ecuted_and^ delivered." 

The  jud^efoun4^_forthe_pet^^  the  respondent  alleged  ex- 

ceptions. 

BralEy,  J.  The  petitioner  by  mesne  conveyances  and  the  respond- _ 
ent  by  direct  grant  derive  title  to  their  respective  lands  which  are  con- 
tiguous on  the  south  from  a  common  grantor  Sylvester  A.  Kemp,  and 
as  the  duly  recorded  deed  from  him  to  Toseph  Tinney  nndpr  whnm 
the  petitioner  claims,  antedates  his  deed  to  the  respondent,  it  follows 
upon  comparison  of  the  descriptions,  that  when  the  position  of  the  dis- 
puted southerly  line  of  the  petitioner's  lot  has  been  ascertained  the 
northerlyline  of  the  respondent's  lot  also  will  have  been  defined,  and 
the  controversy  determined. 

It  is  a  familiar  rule  in  the  construction  of  deeds,  that,  where  the  land  -i^^  ^ 
conveyed  is  described  by  courses  and  distances  and  also  by  monuments 
which  are  certain  or  capable  of  being  made  certain,  the  monuments 
govern,  and  the  measurements  if  they  do  not  correspond  must  yield. 
Howe  V.  Bass,  2  Mass.  380,  3  Am.  Dec.  59 ;  Pernam  v.  Wead,  6  Mass. 
131 ;  Mann  v.  Dunham,  5  Gray,  511,  514;  George  v.  Wood,  7  Allen,  14; 
Morse  v.  Rogers,  118  Mass.  572,  578;  Percival  v.  Chase,  182  Mass. 
371,  65  N.  E.  800.  In  its  application  natural  or  permanent  objects, 
such  as  streams  or  rivers  and  the  shore  of  the  sea,  nr  highways  or 
other  lands,  or  artihcial  land  marks  or  signs  such  as  fences,  walls,  a 
Ime,  a  building^  or  a  stake  and  stones,  are  to  be  treated  as  monuments 
or  boundaries.  SStorer  v.  Freeman,  6  Mass.  435,  4  Am.  Dec.  155  ;  King 
V.  King,  7  Mass.  496;  Flagg  v.  Thurston,  13  Pick.  145;  Whitman  v. 
Boston  &  Maine  Railroad,  3  Allen,  133;  Paine  v.  Woods,  108  Mass. 
160;  Boston  v.  Richardson,  13  Allen,  146;  Needham  v.  Judson,  101 
Mass.  155;  Pernam  v.  Wead,  6  Mass.  131 ;  Smith  v.  Smith,  110  Mass. 
302;  Charlestown  v.  Tufts,  111  Mass.  348;  Frost  v.  Angier,  127  Mass. 
212.  And  their  identity  may  be  established  by  extrinsic  evidence. 
White  V.  Bliss,  8  Gush,  510,  512.  The  only  exception  recognized  is. 
where,  by  strict  adherence  to  monuments,  the  construction  is  plainly 
inconsistent  with  the  imgn^gjj^  oTThe  parties  as  expressed  by  all  the 
terms  of  the  grant.  Davi^^^ainsford.  17  Mass.  207:  Murdock  v. 
Chapman,  9  Gray,  156;  George  v.  Wood,  7  Allen,  14. 

The  petitioner  had  the  burden  of  proving  himself  entitled  to  regis- 
tration of  the  premises  as  described  in  the  application.  Bigelow  Carpet 
Co.  v.  Wiggin,  209  Mass.  542,  95  N.  E.  938. 

On  the  face  of  the  deed  no  uncertainty  as  to  the  distances  or  the  lo- 
cation of  the  monuments  or  boundaries  is  disclosed,  yet  upon  applying 


420  DERIVATIVE   TITLES  (Patt  2 

the  description  to  the  land  it  became  apparent  that  the  southeriy  line 
must  run  at  a  njs^ht  an^e  westerjy  frorn^  the  stakes  and  stones  in  the 
west  side  of  Summit  Avenue  "to  land  formerly  owned  by  J.  M.^Can- 
edj^  or  the  call  for  a  distance  of  eight  rods  cannot  be  satisfied.  But 
if,  as  claimed  by  the  respondent,  this  line  should  run  from  the  stake 
and  stones  to  the  Canedy  land,  the  abuttal  or  boundary  on  the  west,  at 
a  point  distant  seven  rods  from  the  south  side  of  East  Ouincy  Street, 
the  boundary  on  the  north,  it  would  exceed  eight  rods,  and  the  area 
ofjhe  petitioner's  land  called  for  by  his  deed  would  fall  correspond- 
ingly short,  as  is  clearly  shown  by  the  first  sketch  or  plan  forming  part, 
of  the  exception-s. 

The  parties  agreed  that,  as  marked  on  the  plan,  the  starting  point  of 
the  lot  was  the  northeast  corner  at  the  intersection  of  East  Ouincy 
Street  with  Summit  Avenue,  which  never  had  been  changed,  ^ndjjie 
respondent's  exception  to  the  admission  of  the  de_e_d  of  Kemp  to  Pattie 

D.  Frost  would  seem  to  havebecome  injtnaterial.  It  was,  howeyer, 
properly  ad mitted!  St  the  date  of  the  deed  to  Frost  East  Quincy 
Street,  although  a  private  way  opened  by  the  grantor  was  a  boundary 
common  to  the  land  conveyed  to  her  as  well  as  to  the  tract,  a  part  of 
which  was  later  deeded  to  the  respondent,  and  grants  of  adjacent  prem- 
ises even  between  strangers  are  admissible  where  the  location  of  the 
Ignd  for  which  registration  is  sought  is  in  dispute.  Sparhawk  v.  Bul- 
lard,  1  Mete.  95,  100;  Devine  v.  Wyman,  131  Mass.  7Z. 

The  northerly  boundary  and  point  of  beginning  being  certain,  the 
easterly  boundary  was  the  west  side  of  the  avenue,  measuring  six 
rods  to  a  stake  and  stones.  The  termini  and  length  of  the  first  course 
were  thus  fixed,  and  the_  stake  and  stones  from  which  the  second  or 
southerly  course  starts  locates  andjcontrols  the.easterlY_end.  iTo  fur- 
ther description  is  given,  and  the  presumption  is  that  this  course,  what- 
everJlijeJuterior  angle  may  be,  ran  straight  to  the  land  on  the  west,  al- 
though  it_coiild^not  be  (Reflected  by  parol  evidence  to  ajpoint  north  of 
the  Canedy  land.  Allen  v.  Kingsbury,  16  Pick.  235;  Jenks  v.  Morgan, 
6  Gray,  448;  Hovey  v.  Sawyer,  5  Allen,  554,  555.  Henshaw  v.  Mul- 
ens,  121  Mass.  143.  The  angle  ofdeparture  however  is  not  given., and, 
as  the  southerly  line  claimed  jjy  each  party  is  not  irregular,  but  when 
projected  extended  directly  from  landmark  to  landmark,  a  material 
discrepancy  in  the  measurement  of  the  third  or  westerly  course  would 
be  caused  whichever  position  is  taken.  A  latent  ambiguity,  as  the 
judge  properly  ruled,  had  been  developed  which  could  be  removed  only 
by  proof  of  extrinsic  facts.  Frost  v.  Spaulding,  19  Pick.  445,  31  Am. 
DecTl 5U ;  Stone  v."Clark,  1  Mete.  378,  35  Am.  Dec.  370;  Stevenson  v. 
Erskine,  99  Mass.  367;  Miles  v.  Barrows,  122  Mass.  579;  Graves  v. 
Broughton,  185  Mass.  174,  69  N.  E.  1083 ;  "Haskell  v.  Friend,  196  Mass. 
198,  81  N.  E.  962 ;  Weeks  v.  Brooks,  205  Mass.  458,  462,  463,  92  N. 

E.  45.    Compare  Hall  v.  Eaton,  139  Mass.  217,  29  N.  E.  660. 

It  appears  from  the  chain  of  title  that  Kemp,  when  the  owner  of  the 
entire  tract  shown  by  the  plan,  first  conveyed  the  portion  lying  north- 


Ch.  3)  THE  PROPERTY  CONVEYED  421 

erly  of  the  respondent's  land  to  Joseph  Tinney,  and  the  declarations,  of 
Kemp  to  Tinnev  made  while  measuring  the  land,  and  contemporane- 
ous with  the  giving  of  the  deed,  "that  from  there/'  meaning  the  stake 
and  stones,  "thev  turned  a  right  angle  because  Kemp  stated  he  wanted 
to  measure  at  right  angles  so  that  all  the  lots  would  come  square,  and 
measured  eight  rods  to  the  old  stone  wall  on  the  Canedy  land,"  was 
clearly  admissible.  Abbott  v.  Walker,  204' Mass.  71,  7Z,  90  N.  E.  405, 
26  L.  R.  A.  (N.  S.)  814;  Blake  v.  Everett,  1  Allen,  248;  Davis  v.  Sher- 
man, 7  Gray,  291.  The  subsequent_conyeyance  _£OsggiP_to  the  re- 
spondent  also  shows  a  rectangular  lot,  and  thedescription  is  confirma- 
toj-y  of  the  grantor's  previously  expresseid  purpose  in  fixing  the  shape 
of  the  lots,  that  the  respondent's  northerlv  line  should  run  at  a  right  . .  4jji-^  ' 
angle  with  the  westerly  side  ot  Summit  Avenue,  and  not_at  an  acute^  "^ 

^HK'^.S-  ^.^  th£^ respondent  contends. 

The  adverse  finding  of  fact  of  which  the  respondent  complains,  that 
the  southerly  line  should  be  established  as  contended  for  by  the  peti- 
tioner, having  been  warranted  by  the  evidence,  is  conclusive,  and  the 
decision  that  the  petitioner  had  theji^i^to  have  tusjitle  ^onfiimed^  and 
reg^istered  as  described  in  the  application  shows,,  no  error  of  law. 
American  Malting  Co.  v.  Souther  Brewing  Co.,  194  Alass.  89,  8Q  N.  E. 
526 ;  Rev.  Laws,  c.  128,  §  Z7,  ^  /  ^^   ^^/^^ 

Exceptions  overruled.  (jfictit^^<r*'-^'h^  Cl.^.'C^r^^u~e^    X^    --^"-^-t^ 

SIZER  v.  DEVEREUX.  '  ^ 

(Supreme  Court  of  New  York,  1853.     16  Barb.  160.) 

This  action  was  brought  to  recover  an  undivided  fourteenth  part  of 
so  much  of  the  larfd  (j-nvered  bv  the  Devereux  block  in  the  city  of 
"L[tic^  as  lies  within  the  original  lines  of  Hotel  street.  On  the  trial,  at 
the  Oneida  circuit,  in  October,  1851,  before  Justice  Gridley,  the  de- 
fendant's counsel,  at  the  close  of  the  testimony  on  both  sides,  moved 
for  a  nonsuit.  The  justice  granted  it;  remarking,  among  other  things, 
that  as  it  appeared  by  the  map  referred  to  in  the  description  of  the 
lands  conveyed  by  the  origmal  deeds  of  94  and  95,  that  those  lots  lay 
upon  the  easterly  line  of  Hotel  street,  a  conveyance  of  the  lots  bv  the 
description  and  reference  contained  in  the  deed,  gave  to  the  grantee  the 
land  lyingbetween  the  lots  and  the  middle  of  the  street.  The  plaintiffs 
excepted,  and  on  a  bill  of  exceptions,  moved  for  a  new  trial. 

Gridley,  J.  Mrs.  Sizer,  one  of  the  plaintiffs,  is  one  of  the  heirs 
at  law  of  John  Mappa,  deceased ;  and  she  seeks  to  recover  in  this  ac- 
tion, for  her  share  as  such,  the  one-fourteenth  part  of  a  piece  of  land 
covered  by  a  part  of  the  building  known  as  the  Devereux  block:  and 
being  a  part  of  Hotel  street,  in  the  city  of  Utica.  The  defendant  owns 
the  premises  situated  on  both  sides  of  the  street  opposite  tKe  piece  of 
land  in  question!    The  plaintiff,  however,  insists  that  her  ancestor  never 


'Yat^^^' 


DERIVATIVE   TITLES  (Part  2 

'parted  with  the  legal  title  to  the  site  of  the  street;  and  that  she,  as  his 
heir,  is  entitled  to  recover  in  this  action  her  interest  in  it.  Several  ques- 
tions were  discussed  on  the  argument,  which  we  do  not  propose  to 
\>^,^^^^,^/^'^^\  _  examine.  The  case,  we  think,  may  be  disposed  of,  without  reference 
to  them. 

Hotel  street,  in  the  city  of  Utica,  was  laid  out  as  a  public  highway, 
and  recorded  in  the  office  of  the  town  clerk  of  the  town  of  Whitestown, 
on  the  sixth  day  of  April,  1801.  Previous  to  the  laying  out  of  this 
highway,  the  proprietors  of  the  tract  had  procured  a  survey  to  be  made, 
and  a  map  to  be  constructed,  by  Calvin  Guiteau,  and  filed  with  the  clerk 
of  the  court  in  which  a  space  was  laid  off,  for  Hotel  street ;  _  and  lots 
were  laid  out  upon  it ;  from  which  map  sales  were  made  to  purchasers, 
and  the  lots  were  described  in  the  deeds  bv  reference  to  that  map  and 
survey.  The  premises  in  question  consisted  of  parts  of  village  lots  94 
and  95,  as  designated  on  the  map ;  and  were  respectivelv  described  as 
follows,  in  two  deeds  executed  by  the  original  proprietors,  which  title 
has  descended  through  several  mesne  conveyances  to  the  defendant.  _as 
was  admitted  on  the  trial.  The  deed  conveying  lot  94,  bears  date  on 
the  twenty-eighth  day  of  April,  1803,  in  which  the  premises  conveyed 
are  described  in  the  following  manner :  "All  that  certain  piece  or  par- 
cel of  land  situate,  lying  and  being  in  the  village  of  Utica,  county  of 
Oneida,  and  state  of  New  York^  known  and  distinguished  bv  a  survey 
made  thereof  by  Calvin  Guiteau,  in  the  year  one  thousand  seven  hun- 
dred and  ninety-eight,  and  on  a  map  of  said  land  filed  in  the  clerk's 
office  of  the  county,  by  lot  94.  Beginning  at  the  S.  E.  corner  of  No.  93, 
and  runs  from  thence  north  fifty-three  degrees  and  fourteen  minutes, 
W.  fifty-seven  feet.  Thence  S.  36  degrees  15  minutes,  W.  sixty  feet. 
Thence  south  fifty- three  degrees  fifteen  seconds,  East  twenty-nine  feet, 
to  tlie  Genesee  road.  Then  No.  sixty  degrees  East  along  the  side  of  the 
same,  to  the  place  of  beginning."  Lot  No.  95  was  conveyed  by  defid. 
bearing  date  September  24th,  1802.  in  which  the  premises  were  describ- 
ed  as  "All  that  certain  lot  or  piece  of  ground  situated  in  the  village  of 
Utica,  and  county  of  Oneida,  known  by  a  survey  made  thereof  by 
Calvin  Guiteau,  in  the  year  one  tliousand  seven  hundred  and  ninety- 
eight,  by  lot  No.  95.  Beginning  at  the  S.  E.  comer  of  94,  runs  thence 
north  53  degrees  45  minutes  W.  twenty-nine  feet ;  thence  S.  thirty-six 
degrees  15  minutes  west,  sixty- four  feet,  to  the  Genesee  road;  thence 
along  the  side  of  the  same  N.  sixty  degrees  E.  to  the  place  of  begin- 
ning." It  will  be  observed  that  though  Genesee  street  is  named  in 
these  deeds,  and  the  boundary  of  the  landf^  rlp'^rrihpH  k  gtat^d  t^  ^"" 
along  the  side  of  the  Genesee  road,  ypt  Hntpl  qtrppt  i<;  not  naryipd  \v 
either  of  tjiern;  but  the  boundary  of  the  lots  is  described  as  running 
a  certain  course  for  a  certain  distance,  referring  to  the  survey  and  map 
on  file;  which,  on  inspection,  ghj2\v  these  lot^  bounded  on  the  space  lajd 
out  as  Hotel  street  j,  which  descriptions  are,  by  the  »;ptt1pH  rnnstpirtinn.q. 
to  be  read_as  though  the  boundary -b?id  .been  df"ifribfd  ^°  rnnmnor,' 'j^ 
Hotel  street,  and'aTong  thesaid  street,"  on  the  given  courses,  and  f^ 


'Vs  ^AJi  ^iAcJ-  cu^  "--^^ 


(I2--^Z"^^ 


Ch.'S)  THE  PROPERTY  CONVEYED  423  ' 

tl^e  given  distances.  This  is  a  significant  distinction,  and  as  we  shall 
see  by  and  by,  is  quite  decisive  of  the  rights  of  the  parties  in  this  cause. 

We  are  to  inquire  what  is  the  legal  construction  of  deeds  whicti  de-     _ 
scribe  the  boundaries,  adjacent  to  Hotel  street,  bv  courses  and  distances    . 
merely.    Does  such  a  description  convey  the  land  to  the  center  of  Hotel 
street,  or  does  it  convey  the  land  only  up  to  the  eastern  side  of  it?   , 
We  believe  the  uniform  construction  of  words,  such  as  are  employed 
in  this  description,ig,  that  the  convevance  extends  to  the  center  of  the  ^ 

highway.  Such  words  as  are  used  to  describe  the  premises  on  the  side 
next  Hotel  street,  not  only  have  never  been  construed  to  limit  the  grant 
to  the  side  of  the  street,  but  have  been  uniformlv  regarded  bv  the  courts 
as  a  conveyance  to  the  center  of  the  street.  The  general  rule  on  this 
subject  IS  laid  down  in  Kent's  Commentaries,  (3  vol.  432,)  in  these 
words :  "The  law  with  respect  to  public  highways  and  to  fresh  water 
rivers,  ij  the  same.  The  owners  of  the  land  on  each  side  go  to  the  cen- 
ter of  the  road."  The  language  oTthe  court  in  Jackson  v.  Hathaway, 
15  John.  454,  8  Am.  Dec.  263,  and  the  same  is  re-affirmed  in  the  court 
for  the  correction  of  errors,  in  Child  v.  Starr,  4  Hill,  369,  is  as  follows : 
"Where  a  farm  is  bounded  along  a  highway,  or  upon  a  highway,  or  is 
described  as  running  to  a  highway,  there  is  reason  to  intend  that  the 
parties  meant  the  middle  of  the  highway."  Ch.  Kent  says,  (supra,) 
•'The  ijjea  of  an  intention  in  a  grantor  to  withhold  his  interest  in  .a 
road  to  the  mid^31e  of  it.  after  parting  with  all  his  right  to  the  ad- 
joining land,  IS  never  to.be  presumed :  it  would  be  contrarv  to  universal 
practice.^^     JSlgygrtl^less  ^  grant  mav  be  so  worded  as  to  exclude  the  2^ 

highwav  from  the  termsof  the  convevance.    And  it  was  held  in  Child 
V.  Starr,  4Hnr,  "359,  and  5  Denio,  600,  that  where  land  is  described       '^^^-'- 
as  running  to  the  side  of  a  road,  or  to  the  bank  of  a  river,  and  then     -^-♦^^-^ •«''  v. 
along  th^  ■^iHp  of  fhp  roarl  or  bank  the  road  or  bank  is  excluded  by  the    /^^<^  -'^^- 
terms  of  the  grant.     We  see,  therefore,  that  when  premises  are  de-  ,^^/^,^      y»'-^ 
scribed  as  running  "to  a  road,  and  along  a  road,"  the  grant  includes 
the  road  to  the  center ;  whereas,  if  the  boundary  were  to  the  side  of 
the  road,  and  along  the_.s.ide  of  the  road,  the  road  is  excluded,  by  the 
terms  of  the  conveyance.     The  description  of  the  lots  in  question,  on 
th^  side  of  Genesee  street,  running  to  the  side  of  the  street,  and  along 
the  side  of  the  street,  conveys  no  part  of  that  street.    That  was  a  turn-  — 4^1  ^^  C-lr-»-^ 
pike  road;  and  the  proprietors  did  not  own  it,  and  had  no  right  to 
convey  it;  and  hence  the  significant  phraseology  of  the  deed.     The 
fact  was  not  so,  however,  with  respect  to  Hotel  street.    The  proprietors 
owned  the  soil  of  that  street,  and  they  adopt  a  description  which  by  the 
established  construction,  of  the  words  carries  the  grantee  to  the  center 
of  that  streetjy  The  boundary  on  the  side  of  Hotel  street  is  equivalent 
to  a  description  in  words  of  premises  running  "to  Hotel  street  and 
along  Hotel  street."    It  is  fixed  by  courses  and  distances,  without  nam- 
ing Hotel  street  at  all.    And  in  just  such  a  case  as  this,  the  very  point 
was   decided   by  the   supreme   court  of   Connecticut,   in   the   case   of 
Champlin  v.  Pendleton,  13  Conn.  23,  25,  27.    The  question  was,  wheth- 


c'J^^  o  jr  - 


1^  cx^ .  /t^  *i 


424 


DERIVATIVE   TITLES 


(Part  2 


^ 


^ 


er  a  line  not  described  as  running  on  a  street,  but  which  was  proved 
on  the  trial  to  run  on  a  street,  in  fact,  was  to  be  construed  as  carrying 
the  grant  to  the  middle  of  such  street,  and  the  court  held  that  it  should 
be  so  construed.  The  court,  after  saying  that  the  general  principle  was, 
that  a  description  which  carried  the  boundary  "to  a  street,  and  along  a 
street,"  embraced  the  street,  to  the  center  of  it,  proceeded  to  lay  down 
the  doctrine  that  where  it  turns  out  in  the  evidence  that  the  courses 
and  distances  given  in  a  deed  do,  in  fact,  carry  the  boundary  to  a  street, 
and  along  that  street,  itis  the  same  in  law  as  though  it  were  expressed 
in  words. 

Applying  that  principle  to  the  case  at  bar,  we  see  that  the  courses 
and  distances  given  in  the  deeds  do.  in  fact,  carry  tlie  boundary  to  Ho- 
tel street,  and  along  Hotel  street.  It  follows  therefore  that  it  is  in  law 
the  same  as  though  the  boundary  were  described  to  run  "to  Hotel 
street,  and  along  Hotel  street,"  in  words.  The  consequence  is,  that  by 
the  settled  construction  of  the  words  and  phrases  used  in  describing 
the  premises  adjacent  to  Hotel  street,  the  grant  is  carried  to  the  center 
nf  that  <;frpef 

There  is  another  view  of  this  question  that  leads  to  the  same  con- 
clusion and  is  equally  conclusive  in  favor  of  the  defendant.  The  de- 
scription refers  to  the  map  made  by  Calvin  Guiteau  and  on  file  in  the 
office  of  the  clerk  of  the  county.  That  map  is  in  evidence,  and  exhibits 
the  premises  in  question  as  lying  adjacent  to  Hotel  street-  This  map 
therefore  is,  by  legal  intendment,  a  description  of  the  premises  as 
bounded  on  Hotel  street,  and  demands  a  construction  precisely  the 
same  as  though  the  description  was  so  written  out  in  words.  This 
principle  is  stated  and  illustrated  in  the  case  of  Varick  v.  Smith,  9 
Paige,  550,  553,  where  the  premises,  which  consisted  of  two  separate 
pieces  of  land,  were  described,  the  one  as  "lot  No.  7  laid  down  and 
delineated  on  a  map  filed,  &c.,  as  adjacent  and  extending  to  the  Os- 
wego river ;"  and  the  other  as  "blocks  No.  78,  90,  99,  103  of  the  village 
of  West  Oswego  as  the  same  have  been  surveyed  and  designated  on  the 
map  of  the  said  village  filed  in  the  office  of  the  secretary  of  state."  The 
jj/ice  chancellor,  in  his  opinion,  in  discussing  this  point,  uses  the  follow- 
ing language:  "An  exemplified  copy  of  the  said  map  has  been  given 
in  evidence,  which  exhibits"^ these  blocks  as  adjoining  the  n^^pfi  •^^^^i<'1i 
I  consider  as  equivalent  to  a  description  that,  in  terms  bounds  th^m 
on  the  river?^  This  position  of  the  vice  chancellor  was  denied  by  the 
counsel  of  the  defendant,  on  the  argument  of  the  appeal.  But  the  chan- 
cellor affirmed  the  doctrine  asserted  by  the  vice  chancellor,  and  said : 
"The  patent  for  No.  7  refers  for  its  location  to  the  map  of  the  town- 
ship of  Hannibal,  filed  in  the  surveyor  general's  office,  and  upon  that 
map  the  lot  is  bounded  generally  on  the  Oswego  or  Onondaga  rivers. 
This  is  the  same,  therefore,  as  if  the  patent  had  in  terms  bounded  the 
land  granted  by  the  river,  without  restriction  or  limitation,  which 
would  legally  have  carried  the  grant  to  the  center  of  the  stream." 
*'The  patent  for  the  blocks  in  West  Oswego  also  refers  in  tlie  same 


Ch.  3)  THE  PROPERTY  CONVEYED  425 

manner,  to  a  map  on  file  in  the  office  of  the  secretary  of  state,  which 
map  bounds  these  blocks  on  the  river,  without  restriction."  This  case 
is  therefore  a  direct  and  conclusive  authority  in  favor  of  the  principle 
on  which  the  question  in  this  case  turns. 

Yhere  is  only  one  objection  to  this  result,  which  remains  to  be  con- 
sidered ;  and  that  is  the  fact  that  the  distance  given  in  the  deeds  would 
only  carry  the  grant  to  the  side  of  Hotel  street,  instead  of  carrving.  it 
to  the  center.  This  objection,  it  will  be  seen,  is  founded  on  the  idea 
that  whenever  it  appears  by  the  express  words  of  the  grant,  or  by  a  j^ 

map  which  exhibits  the  premises  as  running  to  the  road,  the  road  itself 
is  excluded.  This  we  have  already  seen  to  be  an  error.  The  road  y  fOm—^Jj  oO 
street  is  in  the  natui^g^  of  a  monument,  and  overrides  and  controls  the.  ^_  ^ 
courses  and  distances ;  and  by  a  fixed  and  settled  construction  premises  Z**"*^**-^  ^ 
described  as  running  to  a  road  are  carried  by  the  conveyance  itself  to  *«  C.  W-<rvu«u» 
the  center  of  the  highway.  The  case  of  Herring  v.  Fisher,  3  N.  Y. 
Super.  Ct.  344,  348,  illustrates  and  answers  the  objection  founded  on 
both  these  grounds.  The  deed  in  that  case  stated  the  premises  as  be- 
ginning at  a  certain  road  and  running  along  the  road.  Oakley,  Ch.  J., 
aftei*  laying  down  the  general  rule  to  which  we  have  adverted,  proceeds 
to  remark  that  "if  the  deed  of  lot  No.  9  had  in  express  terms  declared 
the  boundary  to  begin  at  the  side  of  the  road,  still  by  virtue  of  the  fol- 
lowing words  'running  along  the  road,'  the  line  must  be  held  to  run 
along  the  center  of  the  road.  The  plaintiff,  however,  contends  that 
there  are  two  circumstances  that  tend  to  indicate  an  intention  to  ex- 
clude the  road.  It  refers  to  the  map ;  and  by  the  map  the  road  is  laid 
down  colored  red,  and  the  land  appears  to  run  up  to  the  road  and  not 
to  the  center  of  it ;  and  secondly,  that  the  distance  given  of  the  line  of 
the  premises  running  to  the  road,  would  exclude  the  road.  But  as  to 
the  latter  circumstance  it  is  of  little  moment.  The  distances  can  never 
be  safely  relied  on  as  affording  the  means  of  correctly  Inrating  i-hp 
landj  and  they  are  resorted  to  only  when  other  means  fail,  as  courses 
and  monuments.  But  the  propriety  of  this  rule  is  strongly  illustrated 
in  the  present  instance.  Two  of  the  lines  of  lot  No.  9  are  incorrectly 
given,"  "As  to  the  map  we  do  not  consider  it  can  affect  the  construc- 
tion of  the  deed.  It  is  not  usual,  when  a  map  is  made  of  a  farm  bound- 
ed by  a  road,  to  include  any  part  of  the  road  within  the  lines.  The 
principal  object  of  the  map  is  to  show  the  extent  of  the  beneficial  own- 
ership of  the  proprietor,__and  of  his  right  to  exclusive  occupancy.  ,JL 
When  a  map  has  a  road  forming  one  of  the  sides  of  a  farm,  jp  judg- 
ment of  law  it  includes  one-half  the  road,  thoup-h  the  line  marked  on 
the  map  would  seem  to  exclude^  it.  A  map  in  this  respect  is  like  a 
deed."  See  also  the  same  principle  put  forth  in  Hammond  v.  Mc- 
Lachlan,  3  N.  Y.  Super.  Ct.  323.  This  seems  to  dispose  of  the  objec- 
tions we  have  been  considering.  There  are  other  questions — as,  wheth- 
er ejectment,  being  a  possessory  action,  will  lie  for  part  of  a  street,  and 
also  the  questions  arising  on  the  dedication  of  the  road  to  the  public,. 


426  DERIVATIVE  TITLES  (Part  2 

and  the  implied  exclusion  of  all  right  of  the  plaintiff  to  take  possession 
of  it  if  he  should  recover  it.  But  we  do  not  deem  it  necessary  to  dis- 
cuss these  questions. 

New  trial  denied.^*  /     / 

BANGOR  HOUSE  PROPRIETARY  v.  BROWN. 

(Supremo  Judicial  Court  of  IMaine,  1S51.    33  Me.  309.) 

Trespass  for  tapping  the  plaintiff's  aqueduct  and  drawing  water 
therefrom. 

In  1829,  the  proprietors  of  a  tract  of  land,  in  the  city  of  Bangor, 
caused  one  Bradley  to  draw  a  plan  of  it  and  to  designate  streets  and 
buildingJiils_thereon.  They  then  recorded  the  plan  in  the  registry  of 
deeds. 

Sojan  after  the  plan  was  made,  one  of  said  streets,  now  called  Centre 
street,  was  built  by  said  proprietors,  but  it  has  not  been  kept  in  repaif, 
aiid  only  one  part  of  it  is  used  asa  street. 

The  lot  No.  17,  bounded  southerly  on  Centre  street,  "as  laid  down  in 
said  plan,"  was  conveyed  in  1832,  by  the  proprietors  to  Elliott  Valen- 
tine. A  part  of  No.  17,  and  bounded  on  the  street,  is  now  owned  by  Jhg 
defendant  under  that  conveyance,  and  his  dwelling  house  stands  upon  jt. 
A  portion  of  Centre  street,  remote  from  tlie  defendant's  house,  and 

11  See  Com'rs  for  Land  Tax  v.  Railway  Co.,  [1913]  A.  C.  .Sf54,  379.  where  the 
land  conveyed  was  designated  as  colored  pink  on  a  map,  the  said  colored  por- 
tion extending  only  to  the  side  of  the  highway. 

"Under  the  rule  established  by  this  court,  as  well  as  of  other  courts  cited 
below,  th.e  important  fact  in  the  conveyance  which  raises  the  presumption  of  an 
intent  to  convey  the  bed  of  a  navigable  stream,  or  the  street  or  highway,  in 
front  of  the  land  conveyed,  is  that  the  side  of  the  street  or  BTglvvViry76r  the 
l5ank  of  the  navigable  stream,  is  in  fact  the  boundary  pn  i-Iip  sidp  cff  fbp  binds 
d'escrlbed  in  the  deed  next  to  such  street  or  stream,  or  that  S4ich  si«Jp  of  tlie 
street  or  bank  of  the  stream  is  included  within  the  boundaries  mentioned  in  the 
deed  on  the  side  next  thereto,  although  the  line  of  the  tract  as  describeOn 
the  deed  may  extend  beyond  the  side  of  thp  strppt.  or  hnnk  of  the  river  inti) 
the  street  or  river.  The  fac-t  that  the  line  of  the  tract  of  land  conveyed  as 
described  in  the  deed  is  a  straight  line  from  point  to  point,  by  course  and  dis- 
tance, on  the  side  next  the  river  or  street,  and  that  no  mention  is  made  of  the 
river  or  street,  does  not,  of  itself,  overcome  the  presumption  of  an  intent  to 
cmiveFTo  tlie  center  of  the  river  or  street,  if  such  line  be  in  fact  substantially 
cpincident_with  the  side  of  the  street  or  the  bank  o£  the  river,  and  extends 
tcTor  into  such  river  or  gtrppf;  "  TVnrpvnss  v'Cnlirfhs:  65  Wis.  599,  610,  27  N.  W. 
^(K),  5B  Ain.  Rep.  t)42  (1S86),'  per  Taylor,  J.  The  case  involved  the  boundary 
on  a  stream,  the  description  by  metes  and  bounds  extending  to  the  stream, 
but  not  mentioning  it.  Railway  Co.  v.  Piatt,  53  Ohio  St.  254,  41  N.  E.  243,  29 
L.  R.  A.  52  (1895),  acc 

As  to  boundaries  on  railroad  rights  of  way,  see  Center  Bridge  Co.  v.  Wheeler, 
86  Conn.  585,  86  Atl.  11  (1913) ;   Maynard  v.  Weeks,  41  Vt.  617  (1868). 

As  to  boundaries  on  canals,  see  Goodyear  v.  Shanahan,  43  Conn.  204  (1875) ; 
Lawson  v.  Mowry.  52  Wis.  219,  9  N.  W.  280  (1881). 

As  to  boundaries  on  natural  ponds,  see  School  Trustees  v.  Schroll,  120  111. 
509,  12  N.  E.  243,  60  Am.  Rep.  575  (1887) ;  Hardin  v.  Jordan,  140  U.  S.  371,  11 
Sup.  Ct.  808,  8.38,  35  L.  Ed.  428  (1891).  See,  also,  Lowell  v.  Robinson.  16  Me. 
357,  33  Am.  Dec.  671  (1839),  where  the  pond  was  formed  by  a  mill  dam.  Cf. 
Boardman  v.  Scott,  102  Ga.  404,  30  S.  E.  982,  51  L.  R.  A.  178  a897). 


Ch.3) 


THE  PROPERTY  CONVEYED 


427 


that  portion  only,  has  been  laid  out  and  accepted  by  the  city,  as  a  pub- 
lic street. 

In  1834.  the  plaintiffs  laid  an  aqueduct  running  along  in  Centre 
street,  at  the  depth  of  six  feet  below  thp  piirfapPj  tr.  *^f^  rpllar  r>f  tji^ir 
hotelj 

The  evidence  proved  that  the  defendant  cut  the  aqueduct  pipe.  Iving 
within  the  northern  half  of  the  street,  and  in  front  of  his  own  house. 

The  defendant  contended,  that  as  his  premises  were  bounded  upon 
the  street,  his  title  extended  to  the  centre  of  it,  and  gave  him  a  right 
to  tap,  and  even  to  remove  the  aqueduct.  The  Judge  ruled  that  the  de- 
fense was  not  made  out,  and  the  defendant  excepted — 

SheplEy,  C.  J.  An  aqueduct,  owned  by  the  plaintiffs  appears  to 
have  passed  through  a  street,  formerly  called  Centre  street,  in  front  of 
the  defendant's  dwelling  house,  nearer  to  it  than  the  centre  of  the 
street^  and  about  six  feet  below  the  surface  of  the  earth. 

A  lot  of  land  numbered  seventeen,  a  part  of  which  constitutes  the 
defendant's  house  lot,  was  conveyed  by  the  owners  to  Elliott  Valentine, 
on  September  28,  1832,  bounded  "southerly  on  Centre  street,  there 
measuring  120  feet,"  "as  the  same  is  laid  down  on  a  plan  drawn  by 
Zebulon  Bradley,  in  December,  1829."  The  title  of  the  defendant  is  J 
derived  from  Valentine. 

The  owners  of  land,  including  this  lot,  caused  Bradley  to  draw  a  plan 
thereof  in  December,  1829,  and  to  designate  upon  it  building  lots  and 
sti-eets.  They  soon  afterwards  caused  Centre  street  to  be  prepared  for 
use  as  a  street  or  way. 

As  the  law  has  been  established  in  this  State,  when  land  conveyed  is 
bounded  on  a  highway,  it  extends  to  the  centre  of  the  highway ;  where 
it  is  bounded  on  a  street  or  way  existing  only  by  designation  on  a  plan. 
or  as  marked  upon  the  earth,  it  does  not  extend  to  the  centre  of  such 
wa 


The  occasion  of  such  difference  in  effect  may  be  ascertained.  The 
owner  of  land,  who  has  caused  it  to  be  surveyed  and  designated  as 
containing  lots  and  streets,  may  not  be  able  to  dispose  of  the  lots  as  he 
anticipated,  and  he  may  appropriate  the  land  to  other  uses ;  or  he  may 
change  the  arrangement  of  his  lots  and  streets  to  promote  his  own  in- 
terest, or  the  public  convenience  in  case  the  streets  should  become  high- 
ways. He  does  not  by  the  conveyance  of  a  lot  bounded  on  such  a  way 
hold  out  any  intimation  to  the  purchaser,  that  he  is  entitled  to  the  use 
of  a  highwav  to  be  kept  in  repair,  not  at  his  own,  but  at  the  public  ex- 
pense, for  the  common  use  of  all.  While  he  does  by  an  implied  cove- 
nant assure  to  him  the  use  of  such  designated  way  in  the  condition  in 
which  it  may  be  found,  or  made  at  his  own  expense.  By  a  repurchase 
of  that  title,  the  former  owner  would  be  entitled  to  close  up  such  way, 
as  he  would  also  by  obtaining  a  release  of  the  right  of  way. 

There  is  no  indication  in  such  cases  of  an  intention  on  the  part  of        .  y 

the  grantor  to  dispose  of  any  more  of  his  estate  dian  is  included  by       JijUC^ 
the  description,  with  a  right  of  way  for  its  convenient  use.  — 


/ 


C^.  SSI   --  m%- 
sj  c^,  ia^ .  is'C    ■ 


yl>**^-« 


428  DERIVATIVE  TITLES  (Part  2 

When  a  lot  conveyed  is  bounded  on  a  highway  expected  to  be  per- 
manent, the  intention  to  have  it  extend  to  the  centre  of  it  is  inferred, 
(among  other  reasons  noticed  by  this  Court  in  former  cases,)  from 
tlie  consideration  that  the  vendor  does  not  convey  or  assure  to  the  ven- 
ee  a  right  of  way,  the  law  affording  him  in  common  with  others  a 
nore  permanent  and  safe  public  way,  to  be  kept  in  repair  at  ihe 
^public  expense.  The  vendor  not  being  burdened  by  an  implied  cov- 
enant, that  the  vendee  shall  have  a  right  of  way,  has  no  occasion  to  re- 
tain the  fee  of  the  highway  for  that  purpose.  Hence  arises  one  motive 
inducing  him  to  convey  all  the  rights,  which  he  can  convey  to  land 
covered  by  the  highway. 

■  In  argument  for  the  defendant  it  is  insisted,  that  Centre  streets  at 
.^_,^^      the  time  of  the  conveyance  had  become  a  highway  by  dedication  oiJ:he 
owners  of  the  land. 

j^,^    fl  It  might  be  sufficient  to  observe,  that  such  a  position  does  not  ap- 

pear to  have  been  presented  at  the  trial,  for  decision  by  the  jury  or 
iK^>'.    .  for  instruction  by  the  Court. 

Without  insisting  upon  this,  the  testimony  presented  in  the  bill  of 
exceptions  does  not  sustain  the  position. 

If  an  owner  of  land  should  cause  it  to  be  surveyed  into  lots  and 
streets,  and  a  plan  thereof  to  be  made,  and  should  also  cause  the 
streets  to  be  made  convenient  for  use,  and  continue  to  keep  the  land 
enclosed  as  his  own  property,  it  would  not  be  contended,  that  a  ded- 
ication of  it  to  the  public  could  be  inferred  from  these  acts.  Xjiere 
rnust  be  some  act  of  the  owner,  from  which  it  can  be  clearly  inferred. 
J.  that  he  intended  to  surrender  it  for  public  use,  and  not  for  the  use  of 

certain  persons  only.  The  simple  facts,  that  a  person  pursued  such  a 
course  respecting  his  land,  and  that  he  opened  a  way  for  the  use  of  a 
purchaser  of  a  lot,  would  not,  alone  considered,  authorize  an  infer- 
ence that  it  was  dedicated  to  the  public  for  common  use.  .  There  should 
be  some  evidence,  that  it  was  generally  used  with  his  knowledge,  as 
public  convenience  might  require,  to  authorize  such  a  conclusion. 
Nor  could  the  owner  compel  the  public  to  accept  and  adopt  such  streets 
as  highways.  There  should  be  evidence  that  they  had  been  commojily 
used  to  authorize  an  inference,  that  they  had  been  accepted  as  public 
ways.__ 

In  this  case,  there  is  not  only  no  evidence  that  Centre  street  at  the 
time  of  the  conveyance  of  the  defendant's  lot  to  Valentine  had  been 
used  as  a  public  way,  but  there  is  evidence,  that  it  was  not  kept  in  re- 
pair^ and  that  part  of  it  only  is  used  as  a  street.  x 

Exceptions  overruled,  and  judgment  on  the  \&v6.\zt.^*( .^^  fi£4AA>*Xt^j 

12  Hopkinson  v.  McKni?ht,  31  N.  J.  Law,  422  (1S66) ;  Robinson  v.  Jilyers,  67  Pa. 
d  (1871) ;  Plumer  v.  Johnston,  63  ]\Iich.  165,  173,  29  N.  W.  6S7  (18S6),  dictum, 
ace.  Johnson  v.  Arnold,  91  Ga.  659,  18  S.  E.  370  (1893) ;  Stark  &  Wales  v. 
Coffin,  105  Mass.  328  (1870) ;  Bissell  v.  New  York  Cent.  R.  Co.,  23  N.  Y.  61 
(1861) ;  Jarstadt  v.  Morgan,  48  Wis.  245,  4  N.  W.  27  (1879) ;  Paine  v.  Consumr 
ers  Forwarding  &  Storage  Co.,  71  Fed,  626,  19  O.  C.  A.  99  (1895),  contra. 


Ch.3) 


THE  PROPERTY   CONVEYED 


429 


SACCONE  V.  WEST  END  TRUST  CO. 

(Supreme  Court  of  Pennsylvania,  1909.    224  Pa.  554,  73  Atl.  971,  24  L.  R.  A. 

[N.  S.]  539.) 

Case  stated  in  ejectment  to  determine  title  to  the  bed  of  an  alley  in 
the'  ninth  ward  of  the  city  of   Philadelphia.     Before  Audenried,  J. 
The  following  plan  shows  the  situation  of  the  alley: 

3ouTH       Pe.Hn      Scxii'^RE- 


The  facts  are  stated  in  the  opinion  of  the  Supreme  Court. 

Error  assigned  was  in  entering  judgment  for  defendants  on  the  case 
state4, 

Potter,  J.  This  was  an  amicable  action  of  ejectment,  brought  to 
recoy^.r  possession  of  a  strip  of  ground,  three  feet  in  width  and  eighty 
feet  in  depth^  situated  on  the  west  side  of  Broad  street,  fifty-nine  feet 
south  of  its  intersection  with  South  Penn  square,  in  the  city  of  Phil- 
adelphia. The  parties  agreed  upon  a  case  stated,  which  disclosed  the 
following  facts :  On  April  21,  1832,  Robert  A.  Caldcleugh  conveyed  to 
various  grantees,  fiye  lots  of  ground  .situated  on  South  Penn  square 
west  of  Broad  street,  each  twenty  feet  in  width,  the  corner  lot  and  the 
three  lots  nearest  to  it  being  fifty-nine  feet  in  depth  and  the  western- 
most lot  sixty-two  feet  deep.  Each  of  the  first  four  lots  was  described 
in  the  deeds  as  extending  "to  a  three  feet  wide  alley  laid  out  and 
opened  by  the  said  Robert  A.  Caldcleugh  for  the  accommodation  of 
this_  and  other  lots  adjoining  thereto  and  leading  westward  from  the 
said  Broad  street  to  the  depth  of  eighty  feet."  Each  of  the  five  deeds 
contained  a  grant  of  "the  free  use  and  privilege  of  the  said  three  feet 
wide  alley  as  and  for  a  passageway  and  water  course  in  common  with 
.the  owners  and  occupiers  of  the  said  adjoining  lots/' 


^a-^'f  ^ 


4:30  DERIVATIVE  TITLES  (Part  2 

From  the  date  of  the  deeds  each  of  the  owners  of  the  lots  continued 
to  have,  use  and  enjoy  the  free  and  uninterrupted  use  and  privilege  of 
the  allev  as  and  for  a  passageway  and  watei^  course  in  rnmmnn  yyith 
the  owners  and  occupiers  of  the  other  four  lots. 

On  November  11,  1846,  Robert  O'Neill"  acquired  title  to  the  prem- 


ises adjoining  the  alley  on  the  south  and  on  Tune  26.  1848.  Caldcleugh 

subject  to  the  uses  and 


/M''^^J^         ises  aajommg  me  aiiey  on  me  buum  aiiu  uii   iu 
'/^  con^^cHoQ^Nein  the  soil  of  the  alley  in.  fee, 

^  pmolegesg^nte^o  the  owners  of  the  lots  adjoining.    On  August  9, 

//*/  1849.  O'Neill  conveyed  to  one  Wickersham  the  premises  south  of  the 

y     *         alley  "together  with  the  free  and  common  use  andprivilege  of  the 
^.^A**'^      aforesaid  three  feet  wide  alley  as  and  for  a  passageway  and  water 

^^^/4^   course  into  and  from  Broad  street  at  all  times  forever." 

-^Z  Subsequently,  bv  various  conveyances,  three  of  the  lots  next  the 

corner  ongmally  granted  by  Caldcleugh  became  vested  in  the  West 

End  Trust  Company  and  thp  nthp-r  two  lots,  as  well  as  the  premises 

south  of  the  alley,  granted  by  O'Neill  to  Wickersham.  became  vestfd 

in  the  Girard  Trust  Company.     Both  companies  made  use  of  the  soil 

of  the  alley  in  connection  v/ith  buildings  erected  on  their  respective 

premises,  and  on  October  6,   1905,  they  entered  into  an  agreement 

."Xf^  with  each  other.^'that  the  said  alley  be  and  the  same  is  hereby  aban- 

\^J\J(^*   ^»fdoned  and  vacated."     The  plaintiits  are  the  heirs  at  law  of  Robert 

^j[ji/^  r*0'Neill,  grantee  of  Caldcleugh  by  the  deed  of  June  26,  1848,  and  the 

*Jl     I  defendants  are  the  West  End  Trust  Company  and  the  Girard  Trust 

f^  yi^       (^  Company, 

^  ^  ^     Upon  the  facts  stated,  the  court  below  held  that  each  of  the  grantees 
>^,^^  "^   of  Caldcleugh,  under  the  four  deeds  of  April  21.  1832.  took,  a  fjfp  sinrnje 
^^  ^^^^     title  to  so  much  of  the  ground  in  dispute  as  lay  immediately  in  the  rear 
v''^.    ^       of  the  lot  he  bought,  subject  to  an  easement  m  the  owners  of  the  other 
"^/f^"^        lots^and  that  Caldcleugh  parted  with  all  his  interest  at  that  time,  and 
V^  no  title  to  the  soil  of  the  alley  passed  by  the  deed  of  Caldcleugh  to 

^  CyNeill  on  Tune  26.  1848.     Judgment  was  entered  on  the  case  stated 
•^  ^-^      ior  the  defendants,  and  the  plaintiffs  have  appealed. 
^f^   iJU^     If  the  alley  in  question  had  been  a  public  highway,  the  grantees  of 
•^  '^         land  bounded  thereby  would  without  doubt  have  taken  the  fee  to  the 
center  of  the  highway,  if  the  grantor  owned  such  fee,  and  had  used 
no  language  in  his  deed  indicating  an  intention  to  retain  the  fee  in 
the  highway.    In  one  of  our  latest  cases  bearing  on  this  question,  Wil- 
lock  V.  Beaver  Valley  R.  R.  Co.,  222  Pa.  590,  595,  72  Atl.  237,  238, 
our  Brother  Elkin  said:    "If  the  plan,  pf  lots  in  the  present  case  had 
been  laid  out  by  an  individual  in  precisely  the  same  manner  as  the  com- 
•  monwealth  had  done,  and  lots  had  been  sold  with  streets  as  bound- 
aries, the  title  to  the  fee  to  the  center  o.f  the  streets  would  have  passed 
to  the  purchaser.    This  is  the  rule  of  our  cases. from  Paul  v.  Carver, 
26  Pa.  223  [69  Am.  Dec.  413],  to  Neely  v.  Philadelphia,  212  Pa.  551 
[61  Atl.  1096]." 

We_can  see  no  reason  why,  thfi  same  rule  should  not  apply  to  land 
vvhichis  conveyed  as  bounded  by  a  private  way.     The  doctrine  was 


CIi.  3) 


THE  PROPERTY  CONVEYED 


431 


substantially  adopted  by  this  court,  in  Ellis  v.  Academy  of  Music,  120 
Pa.  608,  623,  15  Atl.  494,  496  (6  Am.  St.  Rep.  739),  where  it  was 
said :  "Nor  did  the  court  err  in  charging  that  parties  who  are  entitled 
to  a  free  use  of  an  alley,  have  the  same  right  in  it  that  the  public  has 
in  its  highways,  and  that  if  the  way  in  this  case  were  vacated,  the  soil 
would  belong  to  the  plaintiff  and  defendant  as  tenants  in  common. 
By  the  several  grants  to  these  parties,  their  properties  were  not  only 
bounded  on  the  alley  in  controversy,  but  it  was  made  appurtenant  to 
those  properties.  Nothing,  therefore,  was  left  in  the  owner,  and  if 
the  fee  did  not  vest  in  these  grantees,  it  is  hard  to  tell  where  it  is.  The 
case  is  very  much  like  that  of  Holmes  v.  Bellingham,  reported  in  7 
C.  B.  (N.  S.)  329,  in  which  Cockburn,  C.  J.,  says :  'The  direction  com- 
plained of  is.  that  the  learned  judge  told  the  iurv  that  there  was  a 
presumption  in  the  case  of  a  private  wav  or  occupation  road  between 
tvyo  properties,  that  the  soil  of  the  road  belongs  usque  ad  medium  to 
the  owners  of  the  adjoining  property  on  either  side.  That  proposi- 
tion, subject  to  the  qualification  which  I  shall  presently  mention, 
and  which  I  take  it,  was  necessarily  involved  in  what  afterwards  fell 
from  the  learned  judge,  is,  in  my  opinion,  a  correct  one.  The  same 
principle  which  applies  to  a  public  road,  and  which  is  the  foundation  of 
the  doctrine,  seems  to  me  to  apply  with  equal  force  to  the  case  of  a 
private  road.'  As  the  doctrine  here  stated  seems  to  be  reasonable  and 
sound,  we  cannot  understand  why  we  should  not  adopt  it.  It  seems  to 
he  arlpiittpH  thaf.  were  the  alley  public,  its  vacation  would  vest  in  each 
of  the  parties  the  unincumbered  one-half  of  the  fee  in  severalty,  and 
why  this  should  not  apply  to  a  private  way,  where,  just  as  in  the  case 
of  a  public  way,  by  the  grant  it  was  made  appurtenant  to  the  several 
properties,  we  cannot  understand."  The  reference  above  to  the  plain- 
tiff and  defendant  as  being  ^nants  in  common^of  the  soil  in  the  alley 
in  case  it  was  vacated,  was^  prpbably  a  slip  of  the  pen^s  later  in  the 
opinion  it  is  stated  that  vacation  would  vest  in  each  of  the  parties  one- 
half  of  the  fee  in  severalty. 

In  Rice  v.  Clear  Spring  Coal  Co.,  186  Pa.  49,  40  Atl.  149,  the  rule 
which  was  approved  by  this  court  was  thus  stated :  "When  the  bound- 
ary given  in  a  deed  has  physical  extent,  as  a  road,  street,  or  other  mon- 
ument having  width,  courts  will  so  interpret  the  language  of  the  de- 
s^cription,  in  the  absence  of  any  apparent  contrary  intent,  as  to  carry 
the  fee  of  the  land  to  the  center  line  of  such  monument."  And  in 
Schmoele  v.  Betz,  212  Pa.  32,  61  Atl.  525,  108  Am.  St.  Rep.  845,  a 
case  which  involved  the  use  of  a  private  alley,  the  doctrine  was  again 
cited  with  approval,  that,  in  case  of  vacation,  the  rule  which  applies 
tQ  a  public  highway  is  to  be  applied  as  between  parties  entitled  to  the  use 
of  a  private  alley." 

13  See  Fisher  v.  Smith,  9  Grav,  441  (18.57);  McKenzie  v.  Gleason,  184  Mass. 
452,  69  N.  E.  1076,  100  Am.  St.  Eep.  566  (1904) :  Freeman  v.  Sayre,  48  N.  J. 
Law,  o7,  2  Atl.  650  (1886) ;  Stockwell  v.  Fitzgerald,  70  Vt.  468,  41  Atl.  504  (1895) 
(semble) ;   Wiess  v.  (Joodhue,  46  Tex.  Civ.  App.  142,  102  S.  W.  793  (1907),  hold- 


^i^**^25^i 


^t-^ti^:?^ 


432  DERIVATIVE  TITLES  (Part  2 

In  some  of  our  cases,  the  language  used  appears  to  sustain  the  con- 
tention of  appellants,  that  there  is  a  distinction  between  a  call  for  a. 
public  highway  as  a  boundary,  and  a  private  street  or  alley,  so  desig- 
nated. But  yye  think  upon  examination  that  these  decisions  were  npt 
intended  to  go  further,  than  to  hold  that  where  l^rid  i^;  rnnvpyprl-^a^ 
bounded  by  an  unopened  street,  the  grantee  takes  the  fee  only  to  the 
side  line  of  the  street,  with  an  easement  over  its  bed.  Thus  in  Cole  v. 
Philadelphia,  199  Pa.  464,  49  Atl.*  308,  the  deed  called  for  a  street 
which  was  unopened,  and  it  was  held  that  the  call  for  an  unopened 
street  as  a  boundary  only  conveyed  the  title  to  the  side  of  the  street 
and  not  to  the  middle  thereof.  In  Clymer  v.  Roberts,  220  Pa.  162,  69 
Atl.  548,  the  deed  called  for  "the  middle  line  of  Howard  street  fifty 
feet  wide ;  thence  along  the  middle  line  of  said  Howard  street."  How- 
ard street  was  at  the  time  an  unopened  street,  but  it  was  held  that  the 
purpose  of  making  the  boundary  to  be  the  middle  line  of  the  street  was 
to  vest  the  fee  in  the  grantee  as  far  as  the  center  line,  notwithstand- 
ing the  fact  that  the  street  was  at  the  time  unopened.  In  Robinson  v. 
Myers,  67  Pa.  9,  where  the  rule  with  regard  to  unopened  streets  seems 
to  have  been  first  laid  down,  this  distinction  is  expressly  made.  Jus- 
tice Williams,  after  stating  the  doctrine  of  Paul  v.  Carver,  26  Pa.  223, 
67  Am.  Dec.  413,  and  Cox  v.  Freedley,  23  Pa.  124,  75  Am.  Dec.  584, 
■  said,  with  reference  to  the  case  then  before  him:  "But  in  this  case 
there  was  no  alley  or  street  by  which  the  lots  were  bounded.  The 
recorded  plan  which  is  to  be  taken  as  a  part  of  the  defendant's  title 
shows  that  the  ground  in  question  is  a  lot,  and  not  a  street.  •  And  it 
is  admitted  that  no  alley  was  ever  laid  out  over  the  lot,  or  ever  used 
by  the  public  or  by  private  individuals.  There  is  then  no  ground  or 
reason  for  the  application  of  the  rule  laid  down  in  Paul  v.  Carver,  to 
this  case."  The  case  of  Van  O'Linda  v.  Lothrop,  38  Mass.  (21  Pick.) 
292,  32  Am.  Dec.  261,  cited  in  Robinson  v.  Myers,  and  also  by  Jus- 
tice Mercur  in  Spackman  v.  Steidel,  88  Pa.  453,  relied  on  by  appellants, 
was  also  a  question  of  an  unopened  street.  IMorton,  J.,  said  (21  Pick. 
296,  32  Am.  Dec.  261) :  "The  street  did  not  then  exist  in  actual  use,  but 
only  in  contemplation."    The  decision  there  seems  to  have  gone  upon  the 

ing  same  rule  applips  whprp  hn^^ndary  is  upon  a  private  wav  as  in  the  cases  in- 
vbiYmg  public  ways.  In  Gould  v.  Wagner,  19(5  Mass.  LJ70,  82  N.  E.  lO  (lyU'O,  tne 
lot  was  described  as  situated  "on"  a  way  five  feet  wT.de;  despite  the  fact  that 
the  way  was  on  the  margin  of  the  grantor's  land,  only  half  of  it  passed  under 
the  deed.  Two  justices,  however,  dissented  on  the  ground  that  the  entire  way 
should  have  passed.     See  Albert  v.  Thomas,  7.3  Md.  181,  20  Atl.  912  (1890). 

As  to  what  will  be  sufficient  to  overcome  the  presumption  that  at  least  half 
of  the  wav  shall  pass,  see  Stearns  v.  'Mulien.  4  Gray  (IMass.)  151  (18.55);  Cod- 
man  v.  Evans,  1  Allen  CMass.)  443  (1861) ;  Crocker  v.  Cotting,  166  Mass.  183,  44 
N.  E.  214,  33  L.  R.  A.  245  (1896) ;   Mott  v.  Mott,  68  N.  Y.  246  (1877). 

That  in  case  of  boundaries  unon  private  w^avs  the  same  rule  as  i"  the  case 
of  pjiblic  ways  is  not  applicable,  see  Seery  v.  WaterbuiT.  82  Conn.  567,  74  Atl. 
908,  25  LrR.  A.  (N.  S.)  681,  IS  Ann.  Cas.  73  (1900) ;  Ames  v.  Hilton,  70  Me.  30 
(1879) ;   Winslow  v.  Reed,  89  Me.  67,  35  Atl.  1017  (1896). 

See  also  Taylor  v.  Armstrong,  24  Ark.  102  (1863) ;  In  re  Robbins,  34  Minn.  99,. 
24  N.  W.  856,  57  Am.  Rep.  40  (1885) ;  Ilealey  v.  Babbitt,  14  R.  I.  533  (1884). 


Ch.  3)  THE   PROPERTY   CONVEYED  i33: 

ground  that  the  deeds  showed  an  intention  by  the  grantor  to  exckide 
the  fee  of  the  street  from  the  grant. 

In  the  present  case  the  lang;-uage  of  the  deeds  frorii  Caldcleugh,  a<;  set 
forth  in  the  case  stated,  shows  that  at  the  time  of  the  conveyances  the 
alley  was  alreadv  "laid  out  and  opened  by  the  said  Robert  A.  Cald- 
ckugh ;  ■  and  it  further  appears  from  the  case  stated  that  after  the  con- 
veyances were  made  the  owners  of  the  lots  continued  the  use  of  the  JiJ^Ji*-u  yO*'-*'^ 
alley,  and  it  was  not  abandoned  or  vacated  until  October  6,  190.S,  a.  pe-  ^^^  yS  ^ 
riod  of  over  seventy-three  vears.     So  that  the  facts  of  this  case  dis-  —  " 

tinguish  it  clearly  from  Robinson  v.  Myers,  supra,  and  the  subsequent 
cases  relating  to  unopened  streets  and  highways.  When  Justice  Mer- 
cur,  in  delivering  the  opinion  of  this  court,  in  Spackman  v.  Steidel, 
88  Pa.  453,  said :  "Where  the  street  called  for  a  boundary  is  not  a  pub- 
lic highway,  nor  dedicated  to  public  use  the  grantee  does  not  take  title 
in  fee  to  the  center  of  it,  but  by  implication  acquires  an  easement  or 
right  of  way  only  over  the  lands/'  and  then  cites  the  cases  which  we 
have  above  referred  to  (Van  O'Linda  v.  Lothrop,  and  Robinson  v. 
Myers),  we  think  it  is  apparent  that  he  had  in  mind  cases  where  the 
deed  called  for  a  street  that  was  unopened,  as  the  two  cases  which  he 
cites  had  reference  to  such  unopened  streets. 

The  authorities  are  uniformly  to  the  effect  that  the  question  .of 
whether  the  grant  includes  the  fee  to  the  bed  of  the  highway,  is 
one  of  intention.  The  grantor  in  the  present  case  did  not  expressly 
■except  fronTTiis  conveyances  the  fee  of  the  alley  in  the  rear  of  the  lots 
conveyed,  and  it  is  hardly  reasonable  to  suppose  that  he  intended  to 
reserve  a  strip  at  the  end  of  the  four  lots,  three  feet  wide  and  eighty  "^ 

feet  lon.s^._ which  hp  wa<;  ctnbjprting  to  easements  which,  so  long  as 
claimed  by  the  grantees.  _would  prevent  him  from  making  any  beneficial 
use  of  the  fee  in  the  strip,  We  think  it  is  apparent  that  Caldcleugh  in 
1832  intended  to  part  with  his  entire  interest  in  the  property,  and  that 
the  alley  was  laid  out  and  opened  as  stated  in  his  deeds  "for  the  ac- 
commodation of  this  and  other  lots  adjoining  thereto."  It  will  be  re- 
called that  the  westernmost  lot.  No.  5,  was  described  as  being  sixty- 
two  feet  in  depth,  and  that  Caldcleugh  did  not  reserve  the  three  feet  at 
the  rear  of  that  lot.     If  he  had  intended  to  reserve  to  himself  the  fee  •  ^^^^ 

in  the  alley,  he  would  naturally  have  reserved  the  same  space  in  the  KO  X4m*««v-«^«^ 
rear  of  lot  No,  j.    But  he  evidently  conveyed  that  lot  to  its  full  depth    ^^^  t^j^k.^^^  •/  * 
because,  as  it  was  at  the  head  of  the  alley,  access  could  be  had  thereto  .....y. \i^  TT".,  .^ 
without  any  such  reservation.     Neither  the  language  of  the  deeds  nor      ,        ^.     ^«l5 
the  situation  of  the  ground,  nor  the  circumstances  connected  with  the*"'tc2JU  ^ 
conveyances,  indicate  any  intention  on  the  part  of  Caldcleugh  to  retain 
the  fee  to  the  bed  of  the  alley,  when  he  made  the  conveyances  in 
1832. 

The  assimments  of  error,  are  overruled.  a,nd  the  judgment  is  af- 

AIG.PK0P.-I-28  T^  -^ 


qi^ 


y^^.. 


L/iT  »    ttO 


434  DERIVATIVE  TITLES  (Part  2 

GEDDES   COARSE  SALT  CO.  v.  NIAGARA,   LOCKPORT  & 
ONTARIO  POWER  CO. 

(Court  of  Appeals  of  New  York,  1913.     207  N.  Y.  500,  101  N.  E.  456.) 

HiscocK,  J.    This  action  was  brought  as  one  of  ejectment  to  com- 
pel  the  appellant  to  remove  wires  used  for  conducting  high  power  elec- 
tric currents  and  strung  above  the  boundaries  of  a  highway,  as  shown 
upon  a  map  which  will  be  referred  to.    The  facts  which  define  the  con- 
^     troversy  are  as  follows : 

In  1902  the  state  issued  to  the  respond epf-  Iptters  patent  wherebv  it 
granted  and  conveved  to  it  certain  lands  theretofore  r^^Tr^titnting  part 
of  the  Onondaga  Salt  Springs  Reservation  and  amongst  which  was  one 
j^/ti^  "parcel,  alone  involved  in  this  action,  described  as  "Subdivision  No.  17 
(of_Farm  Lots  4.S  and  46)  containing  13  42-100  acres/'  as  said  subdi- 
vision was  laid  down  on  a  rnap  of  the  farm  lots  in  question  made  by 
one  Greene,  deputy  surveyor  m  August,  1849,  and  during  said  month 
filed  in  the  office  of  the  secretary  of  state.  Said  map  showed  said 
subdivision  17  as  abutting  at  its  southerly  boundary  on  a  road  four 
rods  wide,  and  which  road  in  turn  had  for  its  southerlv  boundary  the 
blue  line  of  the  enlaro^ed  Erie  canal  then  in  process  of  construction, 
the  distance  from  this  blue  line  to  the  base  line  of  the  canal  as  finally 
3u^/^     /  constructed  and  used  being  upwards  of  thirty  feet.     Fpr  some  time 

.->         /     ^^r*  before  the  grant  in  question  said  road  apparently  was  not  used  bv  the 
J?         public  in  the  portion  bounding  subdivision  17  aforesaid,  but  at  least 
some  part  of  it  seems  to  havp  bppri  nrrnpied  by  a  storehouse  belong- 
/inp-  to  the  respondent.     The  letters  patent  and  the  map  to  which  ref- 
erence has  been  made  gave  the  area  of  subdivision  17  and  other  parcels 
then  being  conveyed  and  such  statement  of  such  area  is  satisfied  with- 
out incorporating  in  the  grant  any  portion  of  the  hi.jyhway.     Under 
these  circumstances  the  question  has  arisen  whether  the  respondent 
"^  accjuired  title  to  all  or  to  part  of  said  highway  as  subdivision  17  abutted 
•    on  the  same^  and  this  question  by  consent  was  disposed  of  by  the  trial 
court  as  a  question  of  law,  it  holding  that  the  respondent  acquired  title 
to  the  bed  of  the  entire  highway. 
^^Jc_      (      '^^^  general  rule  is  that  a  conveyance  by  reference  to  a  map  which 
Y^^^fCi*         \  shows  the  premises  being  conveyed  as  abutting  upon  a  highway,  as 
(  (Ra^-*^      I  between  the  grantor  and  grantee,  conveys  to  the  latter  title  to  the  fee 
V  of  the  highway  tojhejcentgr  Ijjlg  thereof.     This  is  the  rule  as  r^mm^t 
the  state  as  well  as  against  a  private  grantor,  and  it  applies  even 
though  at  the  time  of  the  conveyance  the  highway  as  shovyr^  upon  the 
map  has  not  been  accepted  and  used  bv  the  public  as  such,  and  aJtho^iorh 
the  grant  by  its  terms  or  by  reference  to  a  map  gives  an  area  of  the 
premises  being  conveyed  which  is  satisfied  without  resort  to  the  land 
included  in  the  hjo^hwav.    Bissell  v.  N.  Y.  C.  R.  R.  Co.,  23  N.  Y.  61 ; 
Matter  of  Ladue,  118  N.  Y.  213,  23  N.  E.  465 ;  Trowbridge  v.  Ehrich, 
191  N.  Y.  361,  84  N.  E.  297;    Paige  v.  Schenectady  Ry.  Co.,  178  N. 


^//^/^^^ 


Ch.  3)  THE  PROPERTY  CONVEYED  435 

Y.  102,  111,  70  N.  E.  213;   Van  Winkle  v.  Van  Winkle,  184  N.  Y. 
193,  204,  77  N.  E.  ZZ. 

I  see  no  reason  for  attempting  to  build  up  an  exception  to  this  gen- 
eral rule  upon  the  facts  presented  in  this  case,  but  think  that  the  re- 
spondent's title  extended  to  the  center  of  the  highway  opposite  said 
subdivision  17.  as  shown  upon  the  map. 

The  respondent,  however,  is  not  satisfied  with  this  but  insists  that    ^*:i^±2!^_^ 
under  its  grant  it  took  titje  to  the  fee  of  the  entire  highwav.  and  thus  c^^*'^  ^f"*^ 
it  has  so  far  been  held.  lyJ^cJU  "A«-4^ 

The  theory  upon  which  it  bases  this  contention  is  that  the  state  was       y^^rx.,*,*'     *-^ 
not  the  owner  of  or  interested  in  land  on  the  <;pnthpr1y  gide  ni  thi^;  ^ 

highway  in  such  manner  as  would  justify  the  presumption  that  it  in-  '<==Z 

tended  to  retain  title  to  the  fee  of  such  southerly  half  nf  g^^irl  hjpj^-  C^,,^^  ***■  ^^ 
way.  The  cases  especially  relied  on  in  support  of  this  theory  are  those 
of  Haberman  v.  Baker,  128  N.  Y.  253,  28  N.  E.  370,  13  L.  R.  A.  611, 
and  Johnson  v.  Grenell,  188  N.  Y.  407,  81  N.  E.  161,  13  L.  R.  A.  _(N. 
S.)  551.  Each  of  these  cases  involved  the  principle  so  far  as  applica- 
ble to  this  discussion  that  where  a  highway  has  been  constructed  up- 
on the  margin  of  the  grantor's  land  his  subsequent  grant  of  the  abut- 
ting land  should  be  deemed  to  include  the  fee  in  the  whole  roadbed  be- 
cause  it  will  not  be  assumed  that  he  intended  to  retain  the  fee  to  pne- 
half  of  the  roadbed  under  such  circumstances. 

In  the  Grenell  Case  the  grantor  being  the  owner  of  an  island  in  the 
St.  Lawrence  river  constructed  on  its  shore  a  road  extending  to  the 
waters  of  the  river,  and  thereafter  made  a  conveyance  of  land  abut- 
ting on  said  roadway,  and  it  was  said  by  Judge  Gray  in  writing  for  the 
court  that  "there  is  no  sufficient  reason  appnrent  to  infer  an  intention 
by  the  grantor,  when  parting  with  her  title  to  the  only  land  adjoining 
the  road,  to  reserve  any  interest  in  \\\e.  fee  of  the  road  itselT!  Mani- 
festly, from  the  facts,  an  inducement  to  the  purchaser  of  the  lot  was 
its  being  shown,  and  stated,  to  lie  upon  the  shore  of  the  island  and 
the  enjoyment  of  the  riparian  advantages  conferred  a  distinct  value. 
The  ordinary  presumption  is  that,  in  the  absence  of  contradictory 
terms,  the  grantor  does  not  intend  to  retain Jhe  fee  of  the  soil  in  the 
jFeet.;^    18"8  nTy.  410.  81  N.  E.  161.' 13  lTr.  A.  (N.  S.)  551. 

I  do  not  regard  the  facts  presented  in  those  cases  as  so  parallel  with 
the  ones  arising  here  as  to  compel  or  justify  the  adoption  of  the  re- 
spondent's contention.     The  state  is  the  owner  of  the  canal  and  as 
already  stated  between  the  base  line  of  the  canal  and  the  blue  line  which 
bounds  the  highway  on  the  south  there  is  a  strip  of  land  of  consid- 
erable width~    Under  these  circumstances  it  does  not  follow  as  a  con- 
clusion  of  law  that  when  the  state  made  its  conveyance  to  respondent 
it  had  no  interest  in  retaining  the  fee  to  the  southerly  half  of  the  road-    ^^j-^^^^  .^^^^  ^ 
way  or  that  such  retention  would  secure  a  useless  and  barren  right.  ^On    i^*''*'^       .^  , 
tlie  contrary,  it  seems  to  me  that  the  ownership  of  this  extra  strip  oi^Mc/^^^^"*^  f,  ^^^ 
t^iirtv-three  feet  adjoining  the  canal  lands  may  be  a  right  of  much   *-<  '^^^ 
value  and  convenience.     Thus  again  I  feel  that  we  should  follow  the  /t^Zi***-*  -^ 


436 


DERIVATIVE  TITLES 


(Part  2 


general  rule  prevailing  In  the  case  of  grants  of  land  abutting  on  high- 
ways and  that  no  sufficient  reason  exists  for  awarding^  to  respondent 
the  title  to  the  fee  of  the  entire  roadway  instead  of  one-half  thereof. 

These  views  lead  to  the  conclusion  that  the  judgment  appealed  from 
should  be  so  modified  as  to  determine  that  respondent  acquired  title 
t^  the  northerly  half  of  the  highway  onwhich  its  said  premises  aSut 
according:  to  saidGreene  map,Jand  that  it  have  ejectment  against 
appellant  as  to  said  premises,  and  as  modified  affirmed,  without  costs 
to  either  party  on  this  appeal. 

CuLLEN,  C.  J.,  and  Gray,  Willard  Bartlett,  Cuddeback,  and 
HoGAN,  JJ.,  concur.     Mili^SR,  J.,  not  sitting. 

Judgment  accordingl-^.^* 


CHICAGO  &  E.  I.  R.  CO.  v.  WILLARD. 

(Supreme  Court  of  Illinois,  1910.    245  111.  391,  92  N.  E.  271.) 

Hand,  J.  This  was  an  action  of  ejectment  brought  by  the  appel- 
lant in  the  circuit  court  of  Williamson  county  against  the  appellees 
to  re£gver  a  strip  of  land  described  as  commencing  at  the  north-west 
corner  of  the  south-west  quarter  of  the  north-west  quarter  of  sec- 
tion 19,  township  8.  rajige  3  _east,  running  thence  south  275  feet,  thence 
east  16  feet,  thence  north  275  feet,  thence  west  lo  teet  tcTllie  place  of 
beginning,  in  Williamson  county,  Illinois;  The  p-eneral  issue  was  filed, 
and  upon  a  trial,  at  the  close  of  the  plaintiff's  evidence,  the  jury,  under 
the  direction  of  the  court,  returned  a  verdict  in  favor  of  the  defend- 
ants, upon  which  verdict  the  court  rendered  judgment,  and  the  rec- 
ord has  been  brought  to  this  court  by  appeal^  for  review. 

"The  parties  claimed  title  from  a  common  source.  It  appears  from 
the  record  that  on  April  24,  1894,  Felix  G.  Henderson  ^Yifi  ^^^  ^^^'^i^^i- 
in  fee  of  the  south-west  quarter  of  the  north-west  quarter  of  said 
section  19;  that  the  Chicago,  Paducah  and  Memphis  Railroad  Com- 
pany had  located  its  right  of  way  across  said  tract  of  landj  that  on 
that  day  Henderson  conveyed  a  lOQ-foot  strip  across  said  tract,  and  the 
forty-acre  tract  lying  immediately  south  of  said  tract,  to  said  railroad 
company  by  the  following  description :  "I  hereby  sell  and  convey  to 
the  said  Chicago,  Paducah  and  Memphis  Railroad  Company  a  strip 
100  feet  wide  across  my  land,  to-wit :  Where  the  hne  of  said  railroad 
is  now  surveyed  and  located  on  the  west  side  of  the  S.W.N.W.qr.  and 
the  N.W.S.W.qr.  Sec.  19,  Town  8,  South,  Range  3,  East  of  the  third 

14  See  Banks  v.  Ogden,  2  Wall.  57,  17  L.  Ed.  SIS  (1S64) ;  SclioU  v.  Eniericli, 
36  Pa.  Super.  Ct.  404  (190S). 

A.,  the  owner  of  lands  boimded  on  the  east  by  a  river  with  a  highway  run- 
ning along  the  river  bank,  the  east  side  of  the  highway  being  the  west  water 
line  of  the  river,  made  a  deed  of  a  portion  of  said  lands  to  B.,  describing  the 
part  conveyed  as  being  "bounded  on  the  east  by  the  highway."  By  accretion  a 
considerable  tract  of  valuable  land  has  been  formed  on  the  east  side  of  the 
highway.  The  new  land  is  claimed  both  by  A.  and  B.  To  whom  does  it  be- 
long? 


Ch.  3)  THE  PROPERTY  CONVEYED  437 

P.M.,  subject  to  public  road  as  it  now  runs,  being;  50  feet  on  each  side 
of  line  as  now  located ;"  that  on  the  west  line  of  section  19  there  was 
located  a  highway  40  feet  wide;  that  20  feet  of  said  highway  was 
upon  the  Henderson  land ;  that  the  west  line  of  the  right  of  way  strip 
conveyed  by  Henderson  to  the  railroad  company  was  situated  16  feet 
from  the  section  line ;  that  in  1897  the  Chicago,  Paducah  and  Memphis 
Railroad  Company  conveyed  all  its  property,  including  the  right  of 
w^y  purchased  from  Henderson,  to  the  appellant :  that  on  March  23, 
1897,  the  appellant  purchased  a  strip  of  land  9D  feet  wide  and  788 
feet  long  adjoining  the  strip  in  controversy ^  and  other  lands  on  the 
\vest,  and  the  old  40-foot  highway  on  the  section  line  was  aban- 
doned and  a  new  highway  50  feet  wide  and  parallel  to  and  40  feet 
west  of  the  section  line  was  laid  out  in  lieu  of  the  old  highway ;  that 
in  1905  ^Felix  G.  jienderson  conveyed  to  A.  L.  Willard  the  16-foot 
strip  in  controvers:^  and  Green  Hindman  is  in  possession  of  the  same 
as  the  tenant  of  VVillar<j[^. 

It  is  the  contention  of  the  appellant  that  the  title  to  said  16- foot 
strip  lying  between  the  section  line  and  the  west  line  of  appellant's 
right  of  way  passed  by  the  deed  from  Henderson  to  *the  Chicago, 
Paducah  and  Memphis  R?iWq^(\  r.nmpany  antj  frnm  that  railroad  com 
pany  to  the  appellant,  subject  to  the  right  of  the  public  to  use  the  san^e 
as  a  highway,  and  that  the  appellant  is  the  owner  in  fee  of  said  strip, 
and  that  the  highway  having  been  abandoned,  it  is  entitlpd  tn  ihe,  pos- 
session of  said  premise^s.  The  appellees  contend  that  the  deed  from 
llenderson  to  the  Chicago,  Paducah  and  Memphis  Railroad  Company 
only  conveyed  a  100-foot  strip,  and  that  the  title  to  said  16-foot  strip 
remained  in  Henderson  until  it  y/^as  transferred  by  him  to  Willard, 
»  ^nd  that  the  appellant  has  no  interest  in  said  strip^  and  that  Willard, 
b;^' his. tenant,  is  lawfully  in  possession  of  the  same. 

It  has  repeatedly  been  announced  as  the  law  of  this  State,  that  where 
the  fee  to  the  center  of  a  public  street  or  highway  is  in  the  adjoining 
owner,  the  fee  to  the  center  of  the  street  or  highway  will  pass  to    jf  ,  O^ 

a  grantee  of  the  premises  abutting  upon  the  street  or  highway  unless   A^^^^lfx  -^-^ 
there  are  words  in  the  deed  which  limit  the  operation  of  the  deed  to  the 
margin  of  the  street  or  highway.    Hamilton  v.  Chicago,  Burlington  & 
Ouincy  R.  Co.,  124  111.  2J57TrN.  E.  854 ;  Thomsen  v.  McCormick,  136 
111.  135,  26  N.  E.  373;    Henderson  v.  Hatterman,  146  111.  555,  34  N. 
E.  1041;  Clark  v.  McCormick,  174  111.  164,  51  N.  E.  215;  Davenport 
&  Rock  Island  Bridge  Ry.  Co.  v.  Johnson,  188  111.  472,  59  N.  E.  497 ;" 
Huff  V.  Hastings  Express  Co.,  195  111.  257,  63  N.  E.  105 ;   Eisendrath 
&  Co.  V.  City  of  Chicago,  192  111.  320,  61  N.  E.  419;    Brewster  ^-  /-^ 
Cahill,  199  111.  309,  65  N.  E.  233.    The  question  therefore  in  this  cas^^    ) 
is^  wasjhe  grant  limited  to  the  100- foot  strip  in  the  deed  from  Hender-v>l>^ 
son  to  the  Chicago,  Paducah  and  Memphis  Railroad  Company  ?    We 
think  an  examination  of  the  deed  shows  th^t^^twas^  The  deed  does 
not  in  terms   describe  the  premises  conveyed  as   abutting  upon  the 
highway.     On  the  contrary,  it  conveys  "a  strip  100  feet  wide  across 


438 


DERIVATIVE  TITLES 


(Part  2 


my  land,"  that  is,  "50  feet  on  each  side  of  line  as  now  located."  At 
the  time  the  deed  was  executed  the  railroad  company  was  limited  to  a 
right  of  way  strip  100  feet  wide.  The  west  hne  of  the  100-foot  strip 
was  16  ft.  east  of  the  section  line,  and  the  east  four  leet  of  the  40- 
foot  highway  was  thereby  conveyed  to  the  railroad  company  by  tlie 
Henderson  deed.  We  thifik  it  probable  the  words  "subject  to  public 
road  as  it  now  runs,"  were  inserted  in  the  deed  to  cover  the  part  of  the 
highway  which  was  included  in  the  100-foot  strip.  The  grantor  in 
the  deed  manifestly  intended  to  convey  to  the  railroad  company^a 
strip  100  feet  wide  across  his  land,  and'no  more,  for  right  of  way  pur- 
poses. The  strip  conveyed  was  not  described  as  being  on,  upon  or 
along  the  highway,  hut  the  west  margin  of  the  strip  was  four  feet  in 
the  highway.  We  therefore  conclude  that  the  title  to  said  16-foot  strip 
remained  in  Henderson  until  he  conveyed  the  same  to  Willard,  and 
that,  the  appellant  having  failed  to  show  title  in  itself  to  said  prem- 
ises, the  court  properlv  instructed  th^  jury  tn  return  a  verdict  for 
appellees. 

The  judgment  of  the  trial  court  will  be  affirmed.     Judgment  af- 
firmed. 


LOW  V.  TIBBETTS. 

r^npreme  Jiidicial  Court  of  Maine,  ISSl.     72  Me.  92,  39  Am.  Rep.  303.) 

On  Report.     Trespass  for  hauling  certain  loads  of  stone  upon  the 
locus  which  is  within  the  limits  of  a  town  way,  and  the  plaintiff  claimed  ^^_^^ 
to  own  the  fee.     The  question  presented,  called  for  the  construction/?  J) 
of  a  deed  from  the  plaintiff  to  the  defendant,  dated  June  26,  1857.    The^--^ 
description   is  given  in  the  opinion. 

At  the  trial,  the  presiding  justice  was  of  the  opinion  that  the  fee 
was  in  the  defendant,  and  a  nonsuit  was  .oni^red  "which  is  to  be  set 
aside,  if  such  construction  of  the  deed  was  erroneous." 

Barrows,  J.  The  question  is,  w^hether  the  fee  in  the  locus  (vA^hich 
is  a  strip  about  twelve  rods  in  length,  by  forty-four  feet  in  width,  bein^ 

section  of  a  duly  located  street  in  the  village  of  Spring  Vale,  runnjng 
blong  the  bank  of  Mousam  river,  cutting  a  lot  formerly  owned  by  the 
pjamtiff  very  unequally,  and  leaving  the  largest  part  of  it  on  the  side 
farthest  from  the  river,  and  a  little  irregularly  shaped  land  between 
treet  and  river)  is  in  the  plaintiff,  or  in  the  defendant. 

After  the  street  was  built,  plaintiff  conveyed  his  lot  to  defendant,  de- 
scribing first_the_more  important  part,  as  '^uate  in  the  village  of 
S£ring__Vale  *  *  *  beginning  on  the  north  easterly  side  of  the 
new  road  leading  from  the  Province  Mills  Bridge  to  the  cotton  mill, 
and  at  the  southerly  corner  of  the  lot  as  now  fenced  belonging  to  school 
district  number  one,  *  *  *  ^nd  running  (course  given)  by  said 
road     *     *     *     to  a  stake,"  and  thence  around  the  rear  of  the  lot,  "to 


Ch.  3)  THE  PROPERTY  CONVEYED  439 

the  place  begun  at ;  also  the  land  now  owned  by  said  Low  between  said 
roa.d_and  Mousam  river." 

The  well  settled  doctrine  in  this  State  is,  that  a  grant  of  land  bound-  \ /^ 
ed  on  a  highway,  carries  the  fee  in  the  highway  to  the  centre  of  it.  if  /C^Z^*"^*" 
the  grantor  owns  to  the  centre,  unless  the  terms  of  the  conveyance  /  (J  (X^j,^^  ^ 
clearly  and  distinctly  exclude  it.  so  as  to  control  the  ordinary  presump-  \ 
tjon.    Oxton  y.  Groves,  68  Me.  372,  28  Am.  Rep.  75.    Here  the  prin-^ 
cipal  piece  is  bounded  by  the  road  as  a  monument  or  abuttal.     So  is 
the  land  lying  opposite  "between  the  road  and  the  river."  /^    \ 

Is  there  enough  in  the  language  used,  to  exclude  the  street  froin/^  I 
the  conveyance?  The  mere  mention  in  the  description  of  a  fixec^-^^ 
point  on  the  side  of  the  road  as  the  place  of  beginning  or  end  of 
one  or  more  of  the  lot  lines,  does  not  seeiTK  to  be  of  itself  sufficient. 
Ciottle  y.  Young,  59  Me7  105,  109;  Johnson  y.  Anderson,  18  Me.  76; 
nor  will  similar  language,  with  reference  to  monuments  standing  on 
or  near  the  bank  of  a  stream,  in  lines  beginning  or  ending  at  such 
stream,  prevent  the  grantee  from  holding  ad  medium  filum  aquae: 
Pike  y.  Monroe,  36  Me.  309,  58  Am.  Dec.  751;  Robinson  v.  White, 
42  Me.  210,  218;  Cold  Spring  Iron  Works  v.  Tolland,  9  Cush.  (Mass.) 
495,  496.  The  case  of  Sibley  y.  Holden,  10  Pick.  (Mass.)  249,  20  Am. 
Dec.  521,  cited  by  plaintiff,  was  commented  on  by  this  court,  in  Buck- 
nani  y.  Bucknam,  12  Me.  465,  and  that  of  Tyler  v.  Hammond,  11  Pick. 
(Mass.)  193,  in  Johnson  y.  Anderson,  18  Me.  78 ;  and  the  apparent 
force  of  these  decisions  is  somewhat  restricted  and  explained,  by  the 
learned  court  which  pronounced  them,  in  Newhall  y,  Ireson,  8  Cush. 
(Mass.)  598,  54  Am.  Dec.  790,  and  Phillips  y.  Bowers,  7  Gray  (Mass.) 
24;  although  it  is  apparent  from  the  last  case  and  from  Smith  v.  Slo- 
comb,  9  Gray  (Mass.)  36,  69  Am.  Dec.  274,  that  the  Massachusetts 
court  lays  less  stress  upon  the  ordinary  presumption,  and  requires  less 
distinctness  in  the  terms  of  the  deed  to  obviate  it,  than  we  have 
done  in  the  cases  above  cited  from  the  18th,  59th,  and  68th  of  our  own 
reports.  See  also,  Perkins'  note  to  Sibley  y.  Holden,  in  the  second  edi- 
tion of  Pickering's  Reports,  vol.  10,  p.  251. 

Had  the  plaintiff  run  his  first  line  "by  the  north  easterly  '=^'^de■  line  of 
said  road/'  instead  of  "by  said  road,"  and  conveyed  the  land  "lying 
between  the  southwesterly  side  line  of  said  road  and  Mousam  river," 
instead  of  that  "lying  between  said  road  and  Mousam  river,"  a  differ- 
ent question  would  have  been  presented. 

In  the  absence  of  the  very  f ew  y^ord.^  which  were  necessary  to  make 
plain  an  intention  on  the  part  of  the  plaintiff  to,  reser\^e  the  fee  in  the  ^ 

land  covered  by  the  street  to  himself,  we  think  the  ordinary  presump- 
tion and  construction  must  prevail. 

Nonsuit  confirmed.  ^°       f     t^iryi  AmA^  \ 

16  In  Sibley  v.  Holden,  10  Pick.  (]Mass.)  249.  20  Am.  Dec.  .521  (1830),  referred 
to  above,  tbe  court  said  :    "From  this  description,  we  are  all  of  opinion,  that 
the  line  must  begin  on  the  side  of  the  road,  and  at  that  point  exclude  the  road;  /^^ ^\ 
then  the  question  is,  whether  when  the  description  returns  to  the  road  agajpy   '      \ 


e 


A 


440  DERIVATIVE  TITLES  (Part  2' 


SALTER  V.  JONAS. 


r 


r 


CTj  (Court  of  Errors  and  Appeals  of  New  Jersey,  1877.    39  N.  J.  Law,  469,  23 

Am,  Eep.  229.) 

In  Error  to  the  Supreme  Court. 

This  was  an  action  of  ejectment  for  a  small  strip  of  land,  being  one- 

'^    half  of  what  had  been  a  public  street,  in  front  of  a  lot  of  land  which 

the  plaintiS  had  conveyed  to  a  certain  person,  and  which  lot  had  come. 

b}^  divers  mesne  conveyances,  to  the  defendants.    The  plaintiff's  deed 

i     conveyed  the  premises  by  the  following  description,  viz : 

I         "All  that  certain  lot  or  parcel  of  land,  situate,  lying  and  being  in 
the  township  of  Bergen,  .in  the  county  of  Hudson  and  state  of  New 
!  ^J^ersey,  butted  and  bounded  as  follows :    Beginning  at  a  stake^  standing 
*  *  *        at  the  junction  of  tlie  easterly  line  of  Rowland  street  with  the  norther- 
ly line  of  Johnson  street,  as  laid  down  on  the  map  of  said  Salter's 
premises,  and  running  thence  (1)  along  the  northerly  line  of  Johnson 
-    street  south,  twenty-three  degrees  forty  minutes,  east,  fifty  (50)  feet, 
to  a  stake;  thence  (2)  norths  sixty  six  degrees  east,  one  hundred  (100) 
feet,  to  a  stake,  thence  (3)  norths  twenty-three  degrees  and  forty  min- 
utes west,  fifty  (50)  feet,  to  a  stake  in  the  said  easterly  line  of  Rowland 
street;    thence  (4)  along  the  same  south,  sixty-six  degrees  west,  one 
hundred  (100)  feet,  to  the  beginning." 

After  Rowland  street  had  been  used  for  some  time,  it  became  use- 
less, in  consequence  of  another  street  having  been  opened,  and  the  de- 
fendants had  proceeded,  thereupon,  to  take  in  and  enclose  to  the  mid- 
dle  line  of  the  street  in  front  of  the  lot  above  described. 

At  the  trial  in  the  Hudson  Circuit,  the  court  instructed  the  jury  that 
the  defendant's  deed  covered  the  land  in  the  street  which  was  in  dis- 
pute, and  there  was  a  verdict  accordingly.  7^*-u^t*/  Je^  CttJ^  - 
The  opinion  of  the  court  was  delivered  by  " 

Bdasley,  C.  J.     This  case,  as  it  stands  before  this  court,  presents, 
/     \   in  a  distinct  form,  the  question  whether  in  a  conveyance  of  lands 
/     <^    \  which,  in  point  of  fact,  abut  upon  a  street  or  highway,  anything  short 
/       ,     j  orevprp<;<;  wnrHg  pf  pyrin  sign  will  prevent  the  title  from  extending  jo 


the  rnedium  filum  of  such  street  or  highway,  the  grantor,  at  the  date 

it  shall  be  taken  to  mean  the  side  or  the  center  of  the  road.  If  constmed  to  be 
the  center,  then  the  remaining  line  would  neither  be  by  the  side  of  the  road 
nor  the  center,  but  by  a  diagonal  line  from  a  point  in  the  center  to  a  point  on 
the  side.  This  would  not  only  be  obscure  and  inconsistent  with  any  supposed 
intent  of  the  parties,  but  repugnant  to  the  last  clause  in  the  description,  which 
is,  'by  said  road  to  the  place  of  beginning.'  A^  one  point  in  this  lifif  is  fiv-p^n 
by  the  description  to  the  side  of  the  road,  we  nrp  s.ntisfipri  that,  bv  ^  lust  and 
necessary  construction,  the  other  point  must  be  taken  to  he  at  the  side  of  fhp 
roaa,  and  thererore  that  the  soil  or  the  road  was  not  included.''  Cf.,  how- 
everflVIcK^Zirv.  Gleason,  1S4  Mass.  452,  69  N.  E.  1076,  100  Am.  St.  Rep.  560 
(1904). 

See  In  re  Parkway,  209  N.  Y.  344,  103  N.  E.  508  (1913),  where  the  beginning 
point  was  "at  the  northwesterly  corner  of  Walnut  street  and  Second  avenue." 


Ch.  3)  THE  PROPERTY  CONVEYED  441 

of  such  conveyance,  being  the  owner  of  such  street  or  highway  to  that 
extent. 

This  is  a  subject  with  respect  to  which  the  views  of  judges  are  much 
at  variance.    The  general  opinion  appears  to  he  that  there  is  so  strong  /If,     ^,  ^^ - 
a  presumption  of  an  intention  to  convey  the  soil  of  the  highway  when  Y(^^*^  iT 

the  premises  granted  actually  border  upon  it.  that  v,g)i'^Ji]ali^^i^ca-  ^  (S^-*--**-*-*' 
tions  of  a  contrary  purPOse^^aT^pj-egn^^  Under  the  V 

operation  of  such  a  test,  the  present  deed  would  not  embrace  the  land 
in  dispute,  for  the  descriptive  words  cannot  be  extended  from  their 
intrinsic  force,  so  as  to  have  so  wide  a  reach.'  The  jvvordg.  here  used 
will  not,  if  interpreted  in  their  familiar  sense,  and^standing  by  them- 
selves, admit  of  being^  taken  as  deHneatory_o£_any  part  of  the  street. 
The  only  point  for  consideration,  therefore,  is  whether,  when  the  terms 
used  have  this  restrictive  force,  tliey  are  to  lose  that  force  in  the  pres- 
ence of  the  great  presumption  to  the  contrary,  which  is  inherent  in  the 
position  of  affairs  where  a  lot  thus  located  is  granted. 

There  are,  undoubtedly,  decisions  which  tend  very  strongly  to  this 
point,  and  others  which  apparently  reach  it.  The  leading  cases  are 
carefully  collected,  and  the  general  subject  judiciously  handled  in  the 
notes  of  Mr.  Wallace,  appended  to  the  case  of  Dovaston  v.  Payne,  2 
Smith's  Lead.  Cas.  (7th  Ed.)  160.  In  this  series  stands  prominently 
the  case  of  Paul  v.  Carver,  decided  by  the  Supreme  Court  of  Pennsyl- 
vania, 26  Pa.  223,  67  Am.  Dec.  413.^^  In  that  instance,  the  description 
carried  the  lot  conveyed  by  so  many  feet  to  a  designated  street ; 
"thence  southeasterly  along  the  northerly  side  of  said  street,"  and  the 
street  thus  referred  to  was  afterwards  vacated,  and  it  was  held  that 
half  of  it  passed  with  the  lot  that  was  thus  bounded  by  its  northerly  • 

side.  This  result  was  justified  on  the  broad  ground  "tliat  the  par- 
amount irit^gy^(j)f  the  parties,  as  disclosed  from  the  whole  scope  of  the 
conveyance,  and  the  nature  of  the  property  granted,  should  be  the 
controlling  rule.''  A  number  ot  decisions,  bearing  a  similar  aspect, 
are  cited  in  this  opinion,  which  also  displays,  with  much  clearness,  the 
impolicy  of  the  opposite  view.  The  commentator,  with  reference  to 
this  case,  and  other  decisions,  thus  sums  up  the  result:  "The  rule, 
therefore,  which  the  Pennsylvania  courts  regard  as  the  true  one,  and  y^ 
which,  perhaps,  on  the  whole  is  the  wisest  one,  would  seem  to  be  that  Ud. •  Q^-Kt^Q' 
nothing  short  of  an  intention  expressed  in  ipsis  verbis,  to  'exclude'  the  " 

soil  of  the  highway,  can  exclude  it." 

And  this  doctrine,  although  it  cannot  be  said  to  be  sustained  by  the 
greatest  number  of  decisions,  is,  I  think,  the  one  that  ought  to  be  adopt- 
ed in  this  state.  In  our  practice  in  the  conveyance  of  lots  bounded  by 
streets,  the  prevailing  belief  is,  that  the  street  to  its  centre  is  conveyed 
with  the  lot.  Among  the  mass  of  the  people  it  is  undoubtedly  supposed 
that  the  street  belongs,  as  an  appurtenance,  to  the  contiguous  property, 
and  that  the  title  to  the  latter  carries  with  it  a  title  to  the  former.    This 

16  See,  also,  Cox  v.  Freedley,  33  Pa.  124,  75  Am.  Dec.  5S4  (1859), 


442  DERIVATIVE  TiTt.ES  (Part  2 

belief  is  so  natural  that  it  would  not  be  easily  eradicated.  As  a  general 
I^ractice,  it  would  seem  preposterous  to  sever  the  ownership  to  these 
several  particles  of  property.  Under  ordinary  circumstances,  the 
tl^ead  of  land  constituting  the  street  is  of  great  value  to  the  contiguous 
lots,  and  it  is  ot  no  value  separated  from  thenT  It  would  rarely  occur 
that  the  vendee  ot  a  city  lot  would  be  willing  to  take  it  separated  in 
ownership  from  the  street,  and  it  would  as  rarely  occur  that  a  vendor 
would  desire  to  make  such  severance.  In  my  own  experience,  I  have 
never  known  such  an  intention  to  exist,  and  it  is  safe  to  say  that  when- 
ever it  does  exist,  the  conditions  of  the  case  are  peculiar. 

And  it  is  the  very  general  notion  that  these  two  parcels  of  property 
are  inseparably  united,  and  pass  as  a  whole  by  force  o-f  an  ordinary 
conveyance,  that  accounts  for  the  absence  of  any  settled  formula  in 
general  use  for  the  description  of  city  lots  in  a  transfer  of  their  title. 
Upon  an  examination  of  such  conveyances,  it  would,  I  am  satisfied,  be 
disclosed  that  the  utmost  laxity  in  this  respect  prevails.  The  property 
conveyed  is  indiscriminately  described  as  going  to  the  street  and  run- 
ning along  it,  or  as  going  to  one  side  of  such  street  and  thence  running 
alon^cr  such  side.  Such  discriminations  are  not  intentional,  the  purpose 
being  to  convey  all  the  interest  that  the  seller  has  in  the  property  and 
/  in  its  belongings,  and  the  mode  of  accomplishing  this  purpose  is  not 
the  subject  of  attention,  the  street  lot,  as  I  have  said,  being  regarded 
as  a  mere  adjunct  of  the  property  sold,  and  worthless  for  any  other 
use.  Tjiis  being  undeniablv  the  practice  and  general  understanding. 
to  give  a  close  and  literal  meaning  to  the  descriptive  terms  employed 
in  such  instances  would  serve  no  useful  purpose,  but  its  tendency 
would  be  to  defeat  the  object  in  view,  and  to  call  into  life  a  vexatious 
litigation.  The  particular  words  should,  in  such  transactions,  be  con- 
trolled and  limited  by  the  manifest  intention  which  is  unmistakably  dis- 
played in  the  nature  of  the  affair  and  the  situation  of  the  parties. 
When  the  conditions  of  the  case  are  altered,  as  if  the  vendor  should, 
in  a  given  case,  have  an  apparent  interest  to  reserve  to  himself  the  par- 
cel of  street  in  question,  a  different  rule  of  interpretation  might  become 
proper.  So  if  the  abutting  street  referred  to  in  a  conveyance  should 
be  such  only  in  contemplation,  and  should  be  contingent  on  the  will  of 
the  vendor,  the  rule  now  adopted  might  not,  and  probably  would  not, 
be  applicable.  But  where  the  street  is  an  existing  highway,  or  has  been 
dedicated  as  such  by  the  vendor,  or  in  case,  by  the  eftectof  his  con- 
\'^yance,  he  imposes  on  himself  the  obligation  to  devote  the  street  to 
the  public  use,  the  rule  then  becomes  the  criterion  by  which  the  sense 
of  the  deed  is  to  be  ascertained. 

The  only  case  in  our  books  that  I  deem  entirely_apposite  to  the  pres- 
ent inquiry,  is  that  of  Hinchman  et  al.  v.  Paterson  Horse  Railroad 
Co.,  17  N.  J.  Eq.  75,  86  Am.  Dec.  252.  The  extreme  fitness  of  this  de- 
cision, as  an  authority  at  this  time,  does  not  appear  upon  reading  the 
report  of  it;  but  I  have  looked  at  the  original  papers  on  file,  and  have 
found  that  in  some  of  the  deeds  in  that  proceeding,  the  descriptions  of 


Ch.  3)  THE  PROPERTY  CONVEYED  443 

the  boundaries  of  the  lots  are  not  distinguishable  from  the  one  now 
under  our  view.  Those  lots  were  described  as  beginning  at  a  fixedj 
point  on  a  designated  side  of  the  street,  and  thence  along  such  designat- 
ed side,  &c.,  as  in  the  present  instance.  The  descriptive  words,  there- 
fore, were  clear,  and  if  they  were  not  overruled  by  the  predominant 
presumption  of  intent  arising  out  of  the  nature  of  the  act  done,  it  was 
impossible  to  hold  that  any  part  of  the  street  passed  to  the  vendee. 
But  Chancellor  Green  did  hold  that  the  parcel  in  the  street  passed, 
saying:  "It  is  objected,  by  the  defendant's  answer,  that  the  complain- 
ant's titles  do  not  extend  to  the  middle  of  the  street,  because  the  lots, 
as  described,  are  bounded  by  the  sides  of  the  streets.  But  the  estab- 
lished inference  of  law  is.  that  a  conveyance  of  land,  bounded  on  a 
public  highway,  carries  with  it  the  fee  to  the  centre  of  the  road,  as  part 
and[  parcel  of  the  grant." 

I  do  not  know  how  this  decision  is  to  be  sanctioned,  except  upon  the 
ground  already  marked  out.  I  regard  the  case  as  directly  in  point,  and 
it  is  unnecessary  to  sav  that  it  is  of  the  highest  authority. 

The  result  to  which  I  have  come  is.  therefore,  that  this  conveyance 
embraces  the  parcel  of  land  in  the  street,  for  the  reason  that  there  are 
no  express  words  of  exclusion  of  such  parcel. 
^'I'lie  consequence  is,  the  juagment  of  the  court  below  should  be  af- 
firmed.  with  costs.^''  ^A/^itit^*^  <|^^v  d'*^ .  ~" 

17  See  Bu^k  v.  Squiers,  22  Vt.  4S4  (1850),  contra.  Redfielri,  .T..  dissenting. 

"Coiuinir.  then,  to  the  ca«e  in  hand,  I  find  nothing  to  exdude  the  bed  of  the 
stream,  except  the  va}:ue  words,  'h?etrinniiig  at  n  noint  in  tlie  easterly  bank  of 
tlie  I'assaic,'  and  the  furtlier  words,  'to  tlie  easterly  line  of  the  Passaic  river 
and  thence  along  the  easterly  line  of  the~l';issaic  river  the  several  courses  there- 
of.' etq.  These  words  are  no^inore  indicative  of  an  intention  to  excluile  the 
stream  than  were  the  corresnondTiig  words  1(1  billter  v.  Juilil^.  To  ^■Vt7rrnJg~t he 
street.  In  both  "the  easterly  line'  is  declared  in  terms  to  be  the  boundary.  Hut, 
looking  at  the  surrounding  circumstance^  1  find  no  more  reason  for  giving 
them  an  exclusive  effect  in  the  one  t-ase  than  in  the  other."  Simmons  v.  City 
of  I'aterson,  84  N.  J.  E(i.  28.  2i),  94  Atl.  421.  424  (1915).  But  see  Whittier  v. 
Montpelier  Ice  Co.  (Vt.)  90  Atl.  878  (191<J),  contra. 

"The  defendants  contend  that  the  clause  in  the  deed  from  Baldwin  to  Reeves 
and  from  Reeves  to  the  plaintiff,  "thence  northeasterly  on  the  river  shore,'  lim- 
its and  restricts  the  grant  to  the  hank  or  shore  of  tlie  river.  In  Woodman  v. 
Spencer.  54  N.  H.  507  (1874)  this  question  was  considered  in  respect  to  land 
bounded  bv  a  highway,  ana  it  was  there  held  that  thp  pyprpssjnns  'on  the  high- 
way' and  'by  the  side  of  the  nigmvay'  were  identical  in  meaning  and  effect ; 
and  this  view  is  fully  sustained  by  IJovaston  v.  I'aine,  i;  sm.  L.  C.  (H.  &  W. 
is'otes)  21. 'i,  217,  2!W,  '2.84.  '285,  2:17,  2.88  (179.-j) ;  Motley  v.  Sargent,  119  Mas.s.  281 
(1875) ;  Peck  v.  Denniston,  121  Mass.  17  (ls7f.) ;  O'Connell  v.  Bryant,  121  Mass. 
557  (1877).  The  rule  is  a  presumed  understanding  of  the  parties  that  the 
grantor  does  not  retain  a  narrow  strip  of  land  under  a  stream  or  other  highway, 
hppnnse  the  title  Of  it  left  in  him  would  generally  be  of  little  use,  except  roFa 
purpose  of  annoyance  and  litigation."  Sleeper  v.  Laconia,  60  N.  H.  201,  49 
Am.  Rep.  311  (1880).  Starr  v.  Child,  20  Wend.  (N.  Y.)  149  (188S).  ace. ;  Brou- 
son,  J.,  dissenting.  In  the  Court  for  the  Correction  of  Errors,  Starr  v.  Cliild 
was  revei-sed  by  a  vote  of  11  to  10.    4  Uill,  809  (1842). 


\    ]{UduJi4L 


DERIVATIVE  TITLES 


TROWBRIDGE  v.  EHRICH. 


(Part  2 


(Court  of  Appeals  of  New  York,  190S.     191  N.  Y.  361,  S4  N.  E.  297.) 

Haight,  J.  This  action  was  brous^ht  to  determine  the  title  to  a 
Triangular  piece  of  land  lying  at  the  intersection  of  Westchester 
and  Stebbins  avenues,  bounded  on  the  west  by  Stebbins  avenue,  on 
the  southeast  by  Westchester  avenue,  which  intersects  Stebbins  avenue 
diagonally,  and  on  the  north  by  the  southerly  line  of  three  lots  owned 
by  the  defendants  Ehrich,  Spaeth  and  the  Hudson  Realtv_Xompanv. 
'The  property  in  question  was  formerly  owned  by  the  plaintiff  and  was 
'located  in  the  twenty-third  ward  of  the  city  of  New  York.  In  the  year 
1882  she  caused  a  map  of  her  property  to  be  made  and  Jiled  in  the 
office  of  the  register,  showing  the  location  of  the  streets  existing  and 
proposed,  with  which  her  property  was  bounded  and  intersected.  Tl^is 
map  corresponded  with  a  prior  map  filed  in  1878  by  the  park  commis- 
sioners of  the  city  showing  the  proposed  location  of  streets  in  that  part 
of  the  city,  which  the  commission  designed  to  have  opened  as  streets 
of  the  city  and  upon  which  Don^an  street,  as  mapped,  intersected  West- 
chester avenue  and  extended  ma  straight  line  to  Stebbins  avenue,  cov' 
enrip^  the  triancrnlar  parcel  in  dispute.  Thereafter  and  in  the  year  1882 
the  plaintiff  conveyed  to  Bertha  Eck  a  parcel  of  land  designated,  on  the 
map  filed  by  her  in  the  office  of  the  register  No.  892,  as  lot  number  one 
in  block  513  on  said  map  and  particularly  described  as  follows.:  Be- 
ginning at  a  point  where  the  northerly  line  of  One  Hundred  and  Sixty- 
Third  street  intersects  the  easterly  line  of  Stebbins  avenue ;  running 
thence  easterly  along  the  northerly  line  of  One  Hundred  and  Sixty- 
Third  street  30  feet;  thence  northerly  and  parallel  with  Stebbins 
avenue  128.71  feet;  thence  westerly  and  parallel  with  One  Hundred 
and  Sixty-Third  street  30  feet  and  thence  southerly  and  along  the 
easterly  line  of  Sfebbins  avenue  128.71  feet  to  the  point  or  place  of  be- 
ginning. One  Hundred  and  Sixty-Third  street  had  not  been  opened 
through  to  Stebbins  avenue.  Had  it  been,  its  lines  would  nearly  have 
corresponded  with  those  ^ven  upon  the  map  filed  by  the  park  commis- 
sioners as  Dongan  street,  which  was  followed  Dy  the  plaintiff  in  the 
rnap  hied  by  hen  We,  therefore,  conclude  that  the  plaintiff,  in  her 
reference  to  One  Hundred  and  Sixty-Third  street  had  reference  to  the 
northerly  line  of  the  street  as  given  upon  the  map  filed  by  her.  The 
d^^£jidajat  Ehrich,  through  subsequent  mesne  conveyances  from  Bertha 
Eck,  has  become  the  owner  of  the  lands  so  deeded  to.  _hei\ 

The  trial  court  has  found  that  the  defendant  Ehrich  has  become  the 
owner  in  fee  of  that  portion  of  the  premises  described  as  Dongan 
street  in  front  of  those  specifically  described  in  the  deed.  We  readily 
concede  the  correctness  of  the  contention  that  where  an  owner  of  real 
estate  files  a  map  of  his  premises  in  the  office  of  the  register,  upon 
which  is  laid  out  streets  and  avenues,  either  existing  or  proposed,  and 
deeds  with  reference  to  such  streets  and  avenues,  running  to  such 


^b^^^ 


Ch.  3)  THE   PROPERTY   CONVEYED  '44& 

streets  and  along  such  streets  it  will  be  construed  to  have  been  the  in- 
tention of  the  grantor  to  convey  to  the  center  of  such  streets  or  ave- 
nues. But  this  case  is  distinguishable.  The  plaintiff  has  been  careful 
to  commence  her  ^description  of  the  jjroperty  conveyed  at  the  intersec- 
tion of  the  northerly  li^ie  of  One  Hundred  and  Sixty-Third  street  with 
the  easterly  line  of  Stebbins  avenue.  The  commencing  point,  there- 
fore, is  at  the  external  line  of  the  street  and  continues  ea'^fpfly  alaao- 
tlie  northerlv  line  of  the  street.  Had  she  commenced  at  the  intersec- 
tion of  the  two  streets  and  thence  ran  along  the  street  it  would  have 
been  apparent  that  she  intended  to  convey  to  the  center  of  the  street,  , 

but  as  we  have  seen,  she_has  placed  the  boundary  at  the  northerly  line.  \  m^Tm^^^!(,j^^^^^ 
tluis  indicating  an  indention  not  to  include  the  fee  of  the  proposed         ^^;»^     * 
street.    It  is  true  that  she  has  executed  this  deed  in  accordance  with  the  Vi*^  A^Aa**^ 
provisions  of  the  map  filed  by  her,  upon  which  she  designated  this  •t^i.  ^  yL'^-*'    *^ 
space  as  a  street  and  by  reason  thereof  the  grantee  acquired  an  ease-  *w«^  * 

ment  in  it  of  light,  air  and  access,  but  not  the  fee.  ff'^''**^*^ 

The  trial  court,  in  determining  that  the  grantee  acquired  the  fee  as 
well  as  the  easement  in  the  street,  relies  upon  the  cases  of  Matter  Q.f  "i  ^*  ^P   Cjbt^ 
Ladue.  118  N.  V.  213.  23  N.  E.  465.  and  Hennessv  v.  Murdock.  137  %  • 

N.  Y.  317,  ZZ  N.  E.  330,  but  in  neither  of  those  case's  were  the  bounda-  Aa^U*^--*^^ 
ries  given  of  the  property  conveyed  limited  to  the  exterior  lines  of  the  C^ ■*■»■*  /^v-^r* 
street,  and  that  is  the  distinguishing  feature  between  those  cases  and 
this.  It  is  said  that  she  had  no  reason  for  reserving  the  fee  to  this 
particular  parcel,  It  is  quite  apparent  to  us  that  she  had  a  reason ;  a 
map  had  been  filed  by^  the  officers  of  the  citv.  bv  which  it  was  proposed  j-4xA  /'t-*«'«»*»<'^ 
to  take  this  identical  parcel  for  the  purposes  of  a  street :  when  so  taken 
she  would  be  entitled  to  compensation  from  the  citv  for  the  value 
thereof.  She,  therefore,  in  executing  this  deed  saw  fit  to  limit  the  fee 
conveyed  to  the  exterior  boundary  of  the  street,  but  by  conveying  the 
land  with  reference  to  the  street  she  necessarily  included  the  easements 
of  light,  air  and  access. 

On  the  12th  day  of  October,  1886,  the  plaintiff  conveved  to  Mathew 
Farrell  another  parcel  of  land  embraced  in  the  map  filed  by  her  as  lots 
numbers  3,  4  and  5  of  block  513.  beginning  at  a  point  formed  by  the  "    * 

intersection  of  the  northerly  side  of  Westchester  avenue  with  the  west- 
erly side  of  Rogers  place ;  running  thence  along  the  westerly  side  of 
Rogers  place  33.82  feet ;  thence  westerly  and  at  right  angles  to  Rogers 
place  176  feet;  thence  southerly  and  parallel  with  Stebbins  avenue 
128.71  feet;  thence  easterly  at  right  angles  to  Stebbins  avenue  40  feet 
and  thence  northerly  along  the  northerly  side  of  Westchester  avenue 
166.93  feet  to  the  point  of  beginning.  The  third  course,  .running 
southerly  and  parallel  with  Stebbins  avenue  128.71  feet,  in  fact  carried 
the  line  to  the  street  marked  upon  her  map,  and  thence  easterly  at  right 
angles,  to  Stebbins  avenue  40  teet^  in  fact  carried  the  line  along  such 
stre^t^  This  was  equivalent  to  a  designation  of  the  street  in  the  run- 
ning of  the  line,  as.  tp  and  along  the  same.  Van  Winkle  v.  Van  Winkle, 
184  N.  Y.  193,  204,  77/N.  E.  2>Z ;  Hennessy  v.  Murdock,  137  N.  Y.  317, 


446 


DERIVATIVE  TITLES 


(Part  2 


5 


A 


4> 


323,  33  N.  E.  330;  Sizer  v.  Devereux,  16  Barb.  160;  Champlin  v. 
Pendleton,  13  Conn.  23,  It  will  be  observed  that,  by  the  description 
given  in  this  deed,  the  exterior  lines  of  the  streets  are  also  followed ; 
but  bv  a  subsequent  clause  she  states  that  the  convevance  is  to  include 
all  the  right,  title  and  interest  which  she  has  to  that  portion  of  West- 
cnester  avenue  and  Rogers  place  "Ivinp;-  in  front  of  and  adjacent  to 
said  lots  to  the  center  of  said  avenue  and  place,  as  laid  down  on  said 
map, '  tnus  indicating  an  intent  to  convev  to  the  center  of  the  streets. 

Again,  on  the  23d  day  of  August,  in  the  year  1890,  the  plaintiff  con- 
veyed to  Tames  G.  Patten  and  William  H.  Sutcliff  another  parcel  of 
land  described  upon  the  map  filed  by  her  as  lot  number  2  in  block ^13, 
beginning  at  a  point  on  the  northerlv  side  of  Westchester  avenue,  dis- 
tant 30  feet  easterly  from  the  corner  formed  by  the  intersection  of  said 
northerly  side  of  Westchester  avenue  with  the  easterly  side  of  Steb- 
bins  avenue ;  running  thence  northerly  parallel  with  said  Stebbins  ave- 
nue 128.71  feet;  thence  easterly  and  at  right  angles  with  said  Stebbins 
avenue  30  feet;  thence  southerly  and  again  parallel  with  Stebbins  ave- 
nue 128.71  feet  to  said  northerly  side  of  Westchester  avenue,  and 
thence  westerly  along  said  northerly  side  of  Westchester  avenue  30 
feet  to  the  place  of  beginning.  In  this  deed  she  has  designated  tJie 
s^eet  which. she  marked  upon  her  map  as  Westchester  avenue,  which 
in  her  first  deed  she  called  One  Hundred  and  Sixtv-Third  street.  By 
a  subsequerit  clause  of  her  deed  she  provides  that  it  includes  all  of  her 
right,  tide  and  interest^^.  in  and  to  that  portion  of  Westchester  ave- 
nue lying  in  front  of  and  adjacent  to  said  lots  to.  the  center  of  said 
avenue,"  thus  indicating  an  intent  to  convev  a  fee  to  the  center  of  Jhe 
avenue..  The  defendant  Spaeth,  by  subsequent  mesne  convevances.  has 
acquired  the  title  of  Patten  and  Sutcliff  and  the  defendant,  the  Hudson 
RealtyjCompany,  has. acquired  the  title  of  Farrell. 

Our  conclusion,  therefore,  is  that  the  judgment  appealed  from  should 
be  modified  in  so  far  as  lot  number  1  is  concerned,  owned  bv  the  de- 
fendant Ehrich,  so  as  to  limit  his  title  in  the  lands  in  controversv,  to 
the  easements  of  li.ght^  air  and  access,  with  the  right  to  have  such  lands 
kept  open  and  used  as  a  street,  and  that  as  so  modified,  the  judgment 
should  be  affirmed  as  to  him  and  the  other  respondents,  with  costs  to 
the  respondents  Spaeth  and  the  Hudson  Realty  Company,  but  without 
costs  to  either  party  as  to  the  respondent  Ehrich. 

CuLLEN,  Ch.  J.,  and  Gray,  Vann,  W^erner,  Willard  Bartle:tt 
and  Chase,  JJ.,  concur. 

Judgment  accordingly. 


Ch.  3)  *HE  PROPERTY  CONVEYED 


u>^n 


DODD  V.  WITT.  ^^v^    /  /        ^^    ■    '^ 


N:  k  47^,        '^^^^ 


(Supreme  Judicial  Court  of  Massachusetts,  18S5.     139  Mass.  63,  29 

52  Am.  Rep.  700.) 

Writ  of  entry  to  recover  a  parcel  of  land  in  North  Adams.  Plea,  nul 
disseisin.  Trial  in  the  Superior  Court,  before  Gardner,  J.,  who  di- 
rected a  verdict  for  the  demandant,  and  reported  the  case  for  the  de- 
termination of  this  court.    The  facts  appear  in  the  opinion. 

Field,  J.     Thp  dem^udeA  premi'^P';  are  a__s1jip  tvyn  yods  wide  on  the      ,      ,,^ 
westerly  end  of  the  lot  described  in  the  demandant's  deed.     The  de-      H^ic*-'''***'*'**' 
mandant  derives  title  from  Reuben  Whitman,  who  in  May,  1866,  con- 
veyed the  premises  to  Thomas  H.  Lidford  by  a  description  as  follows : 
"Commencing  on  the  road  at  the  southeast  corner  of  the  land  that  I  • 

gave  D.  H.  Raymond  a  bond  to  convey;  thence  west  22  deg.  30  min.  1-Ia.aA**^**^  j  '^ 
N.  ten  rods;  thence  south  22  degrees  30  minutes  west  four  rods;  ^-^^^^^^j^^ 
thence  east  22  degrees  30  minutes  S.  ten  rods ;  thence  soutTi"  on  the  (j^  '  ^^ — 
road  to  the  place  of  beginning."  The  descriptions  in  the  inesne  con-  yt^yC^  ^*»*-r 
veyances  are  substantially  the  same.  The  road  was  four  rods  wide, 
and  Reuben  Whitman  when  he  executed  his  deed  owned  the  fee  of 

^W— ^i^—— < ^  11  >i*— — ■^■w— ^^^i.— —     ■  II        I  !■  I—.— —i— 1,11  11    ■■■■■■II  iiwi»  I    la^i— — ^iWWi—^— 

i_t.  The  deed  therefore  conveyed  the  land  to  the  centre  line  of  the 
highway.  Peck  v.  Denniston,  121  Mass.  17;  O'Connell  v.  Bryant,  121 
Mass.  557. 

The  tenants  contended,  that,  by  the  construction  of  the  deed,  the 
side  lines  of  the  demanded  premises  extended  ten  rods  from  the  centre 
line  of  the  highway,  or  ei.ght  rods  from  the  westerly  side  of  the  high-  [/^^^^^  ^"^"^ 
way;  or,  if  this  were  not  the  true  construction,  that  there  was  an  -fg-z^^^^ 
a^rimguitv  in  the  description ;  and  they  offered  "John  Lidford,  father 
of  said  Thomas  H.  Lidford,  as  a  witness  to  prove  that  at  the  time  of 
the  execution  of  the  above-mentioned  deed  from  Reuben  Whitman  to 
Thomas  H.  Lidford,  the  said  witness  was  present;  and  that  said  Whit- 
man measured  on  the  west  line  .of  the  road  above  mentioned  westerly 
ei^ht  rods,  and  fixed  a  monument  :Ht  ^^""^  nnrthA,vpst  corner  of  the  lot; 
thence  soutlifrly  four  rods  to  the  southwest  corner,  and  fixed  a  monu- 
ment: thence  southerly  eight  rods  to  the  west  side  of  the  highway; 
thejice  on  the  highway  to  the  place  of  beginning;  that  his  son  Thomas 
H.  Lidford  and  himself  built  a  fence  ^rrn^<  th<^  yrect  pnH  nf  said  lot 
from  corner  to  corner,  as  indicated  by  the  monuments  thus  erected,  at 
the  time  of  said  deed  to  Lidford,  which  f^nce  remained  until  after  the 
demandant  went  into  possession  under  his  deed;  that  the  land  inchided 
within  said  measurement  was  all  that  Thomas  H.  Lidford  purchased  % 

as  he  understood  it  at  the  time,  except  that  he  was  told  by  Whitman  "^  (jXP^^*^  ^ 
that  his  grant  really  extended  to  the  centre  of  the  highway,  which  Jie  ^  •  /^  ^ 
was  told  was  four  rods  wide."  The  court  excluded  this  testimony.  i^''*-V^'^ '^  j 
arid  ruled  "that  there  was  no  ambiguity  in  t"h'e  deeds  offered  by  the  * 

plaintiff;  that  the  monument  called  for  'on  the  road'  was  by  the  side 
of  the  road,  and  not  the  centre  of  the  road;"    and  directed  the  jury 


448  DERIVATIVE  TITLES  (Part  2 

to  render  a  verdict  for  the  demandant.     This  is  a  ruling  that,  by  the 
t^    y^>-vtr»«^cqn.struction  of  the  deed,  the  lines  extended  ten  rods  from  the  westerly 
^1^1^^   1/    'jj  sjde  of  the  road. 

>v^^'*-^  ^^^f)  In  Peck  V.  Denniston,  ubi  supra,  Chief  Justice  Gray  says :  "The 
jrZ<  /VO"**"^  general  rule  is  wgll  settletj  that  a  boimdary  on  a  way,  public  or  pri- 
vate, includes  the  soil  to  the  centre  of  the  way,  if  owned  by  the  grantor, 
and  that  the  way,  thus  referred  to  and  understood,  is  a  monument 
wnich  controls  courses  and  distances,  unless  the  deed  by  explicit  state- 
ment or  necessary  implication  requires  a  different  construction.  New- 
hall  V.  Ireson,  8  Cush.  595,  [54  Am.  Dec.  790];  Fisher  v.  Smith,  9 
Gray,  441;  Boston  v.  Richardson,  13  Allen,  146;  White  v.  Godfrey, 
97  Mass.  472;    Motley  v.  Sargent,  119  Mass.  231." 

Not  one  of  these  cases,  however,  considers  the  construction  to  be 
given  to  a  deed  in  which  a  highway  is  a  point  of  departure  for  a  meas- 

In  Newhall  v.  Ireson,  ubi  supra,  the  line  was  "running  northerly 
seven  poles  to  the  county  road,  and  from  thence  upon  the  road  twenty- 
two  poles  to  the  first-mentioned  bound."  The  seven  rods  terminated 
on  the  north  at  an  old  wall,  which  formerly  constituted  the  southerly 
boundary  of  the  road.  The  court  held  that  the  line  ran  to  tlie  centre 
of  the  road,  although  this  was  more  than  seven  rods. 

The  rule  is  stated  in  Motley  v.  Sargent,  ubi  supra,  as  follows :   "It 

t  /^^L^-^^s  a  general  rule  of  construction  that  where  there  is  a  boundary  upon 

^^•^•^^•^y'  ^  a  fixed  monument  which  has  width,  as  a  way,  stream,  or  wall,  even  if 

jtj.jL'^^  the  measurements  run  only  to  the  side  of  it,  the  title  to  the  land  cot^- 

\^ ,  veyed  passes  to  •Qie  line,  which  would  be  indicated  by  the  middle^ 

"^  the  monument."  ~  ~~~~  ' 

I  ...  M 

The  rule  is  then  well  established  when  the  road  is  the  terminus  ad 
quem,  but  there  is  little  authority  when  it  is  the  terminus  a  quo,  and 
tliere  is  no  monument  at  the  other  end  of  the  line. 

A  majority  of  the  court  is  of  opinion,  that  it  is  a  common  method 
of  measurement  in  the  country,  where  the  boundary  is  a  stream  or 
way,  to  measure  from  the  bank  of  the  stream  or  the  side  of  the  way; 
and  thjt  there  is  a  reasonable  presumption  that  the  measurements 
were  made  in  this  way,  unless  sometliing  appears  affirmatively  in^^e 
d^ed  to  show  that  they  began  at  the  centre  line  of  the  stream  or  Vv^ay. 
The  ruling  of  the  court,  in  the  construction  of  the  deed,  was  therefore 
prima  facie  correct,  as  there  was  no  monument  to  determine  the  other 
end  of  the  line.  But  this  presumption  can  be  controlled  by  evidence 
that  the  parties  at  the  time  of  the  convevance  established  monuments 
of  the  boundaries.  Without  determining  whether,  in  this  case,  there 
can  be  said  to  be  a  latent  ambiguity  in  the  deed,  (see  Hoar  v.  Gould- 
ing,  116  Mass.  132),  or  merely  an  indefiniteness  in  the  description,  we 
lyu  are  of  opinion  that  the  acts  of  the  parties  contemporaneous  with  the 
'  \  delivery  of  the  deed  in  fixing  the  monuments,  and  the  subsequent  fenc- 
.   » ing  of  the  lot  and  the  occupation  in  accordance  therewith,  are  admissi- 


J- 


cA 


(t*' 


r 


Ch.  3)  THE  PROPERTY  CONVEYED  449 

ble  in  evidence  upon  the  constracliOB  to  be  g^iven  to  the  deed.  Blaney 
V.  Rice,  20  Pick.  62r32"Am7Decr204 ;  Stewart  v.  Patrick,  68  N.  Y. 
450;  Hamm  v.  San  Francisco  (C.  C.)  17  Fed.  119. 

New  trial. —^<^.  /- 


SECTION  2.— EXCEPTIONS  AND  RESERVATIONS 


DORRELL  v.  COLLINS. 

(Court  of  Queen's  Bench,  1582.     Cro.  Eliz.  6.) 

Ejectione  firmas.  Upon  not  guilty,  the  jury  found  that  the  master 
and  scholars  of  the  college  of  Sinkford  were  seised  in  the  time  of 
Hen.  8  of  the  manor  of  Hodley,  of  which  the  place,  &c.  is  parcel,  and 
let  all  their  lands  in  Lambehurst  (except  the  manor  of  Hodky.,  -in 
Kent,  and  Sussex)  to  T.  S.  for  years:  and  they  further  find,  that  the 
master  and  scholars  had  no  other  lands  in  Lambehurst  than  the  said 
manor.  The  question  was,  if  the  manor  passeth  by  the  lease?  And 
all  the  Court  held,  that  it  being  found  they  had  no  other  land  than  the 
manor,  the  exception  is  void,  because  it  goeth  to  the  whole  thino- 
demised ;  otherwise  of  an  exception  of  part     *    ♦    *  i»  ^ 


^U*-^' 


WHITAKER  v.  BROWN. 
(Supreme  Court  of  Pennsylvania,  1S63.    46  Pa.  197.) 

Error  to  the  District  Court  of  Allegheny  county. 

This  was  an  action  of  trespass  vi  et  armis,  by  Anthony  Whitaker 
against  William  H.  Brown,  to  recover  damages  for  breaking  and  en- 
tering the  plaintiff's  close,  and  for  digging,  mining,  and  carrving  awav 
thirty-nine  thousand  six  hundred  and  twentyfive  bushels  of  bituminous 
coal,  and  converting  and  disposing  of  the  same  to  his  own  use. 

After  the  plaintiff  had  offered  all  his  evidence,  the  defendant's  coun- 
sel moved  the  court  to  enter  a  peremptory  nonsuit  under  the  Act  of 
Assembly,  which  was  done,  and  this  was  the  error  assigned  here. 

The  facts  of  the  case  are  sufficiently  stated  in  the  opinion  of  the 
court. 

Woodward,  J.  On  the  14th  of  March  1853,  Boyle  Irwin  and  wife 
conveyed  by  warranty  deed,  six  and  a  half  acresjof  land  in  Allegheny 

18  The  remainder  of  the  ease  is  omitted. 

Cf.  Foster  v.  Rank,  109  Pa.  291,  58  Am.  Rep.  720  (1SS5) ;  Adams  v.  Warner, 
23  Vt.  395  (1851). 

A  conveyance  is  made  of  a  tract  of  land,  describing  same  "excepting  one  acre 
with  the  buildings  thereon."     What  would  be  the  result  thereof? 

Aig.Prop.— 29 


^  cfCc^ 


>    t       . 


<S^<?>^ 


450 


y% 


DERIVATIVE   TITLES 


(Part  2 


county,  to  ATlthony  Whitaker  in  fee,  "he,  the  said  Boyle  Invin,  saving 
and  reserving  nevertheless  for  his  own  use,  the  coal  contained  in  the 
said  piece  or  parcel  of  land,  together  with  tree  ingress  and  egress  bv 
wagonroad  to  haul  the  coal  therefrom  as  wanted."  Boyle  Irwin  is 
dead,  and  his  rights  in  the  coal,  if  descendible,  are  vested  in  his  heirs, 
the  defendant  justifies  his  entry  to  take  coals. 


V*^^--"^  .  IIT 


It  is  argued  that  the  above  clause  of  the  deed  constituted  a  strict 
and  tprhniral  rpsprvafinn^  whirh,  having  no  words  of  perpetuity,  died 
with  Irwin,  and  t^"'^r'^f''"'f  th?t  \\'1iitnl'pr  now  has  a  several  and  ex- 
clusive  title  to  all  the  rnnl  in  the  land  conveyed  to  him.  On  the  Other 
hand,  the  argument  is,  that  it  was  iiot  a  reserv'ati^n  biit  an  exception, 

nd  therefore  that  no  title  to  the  coalpassed  to  Whitaker  by  the  deed. 

he  question  is.  whether  the  words  of  the  deed  constituted  a  reserya- 

lon  or  an  exception. 

Although  they  were  apt  words  to  constitute  a  reservation,  yet  so  far 
as  they  affect  the  coal,  they  must  operate  as  an  exception,  because  the 
coal  was  a  corporeal  her.£ditamgut,  in^^^sse  at  the  date  of  the  deed, 
part  of  the  land  itself,  and  therefore  not  the  subject  ofa  reservation. 
Says  Lord  Coke,  "note  a  diversity  between  an  exception  (which  is 
ever  of  part  of  the  thing  granted  and  of  a  thing  in  esse)  and  a  res- 
ervation, which  is  always  of  a  thinof  not  in  esse,  but  newly  created,  or 
reserved  out  of  the  land  or  tenement  demised."  And  his  criticism 
upon  the  word  reserve  is  as  follows:  "Reserve  cometh  of  the  Latin 
word  reserve ;  that  is,  to  provide  for  store,  as  when  a  man  departeth 
with  his  land,  he  reserveth  or  provideth  for  himself  a  rent  for  his 
own  livelihood.  And  sometimes  it  iiath  the  force  of  saving  or  ex- 
cepting." 2  Thomas's  Coke  Litt.,  star  page  412.  And  so  in  Shcp- 
pard's  Touchstone  we  read  that  "a  reservation  is  a  clause  of  a  defd. 
whereby  the  feoffor,  donor,  lessor,  grantor.  &:c..  doth  reserve  some 
new  thing  to  himself  out  of  that  which  he  granted  before.  .  This  doth 
differ  from  an  exception  which  is  ever  a  part  of  the  thing  granted, 
and  of  a  thing  in  esse  at  the  time ;  but  this  is  of  a  thing  newly  created, 
or  reserved  out  of  a  thing  demised  that  was  not  in  esse  before, 
so  that  this  doth  always  reserve  tliat  which  was  not  before,  or 
abridge  the  tenor  of  that  which  was  before.^®  If  one  gr?^nt  land  yield- 
ing for  rent  money,  corn,  a  horse,  sours,  a  rose,  or  any  such  things,  tliis 
is  a  good  reservation  ;  J)ut  if  the  reservation  be  of  the  grass,  or  of 
the  vesture  of  the  land,  or  of  a  common  or  otlie^jrofit  to  be  taken 


19  See  Emerson  v.  RIooney,  50  N.  IT.  315  (1S70),  which  determined  the  extent 
of  the  iiliiintiff's  ri^lit  to  t;ike  water  thruUKh  ;in  ;iT|iiHiiii(r  nolli  !i  wt^il  uii  ilije 
defeiulaiit  s  land!  Tlie  pliiintiff  had  duii  a  well  on  the  land  Avhicb  later  came 
to  the  defendant,  and  liail  laid  an  aqnednct  from  the  well  to  certain  Imildiiigs 
on.otiier  lands.  A  conveyance  had  been  made  by  plaintilf  to  the  defendant's 
prede<vssor  of  all  "rijrht.  title,  and  interest  in  and  unto  {lie  acjiieduct  well,  and 
aquednct  leadinj;  therefrom,  to  the  places  liefore  mentioned,  •pxct^ptin  r  tlie 
branch  taken  and  carried  to  Dudley  Barker's  shed.  .nj^Mvealily  to  Ins  deed  from 
me  dated  November  1),  A.  I).  184.'].  and  ilTso  all  my  ri;;ht  of  usina  all  necessary 
w'^Ter~at  my  taKe-onis.  viz..'  etc.  It  was  held  that  plalutilt's  right:  to,  the 
water  was  not  limited  to  his  lifetime.  *"  ~ 


Ch.  3)  THE  PROPERTY  CONVEYED  451 

out  of  the  land^hen  these  reservations  are  void."  Touchstone,  p. 
80,  et  seq.  Void,  I  take  it  the  meaning  is,  as  reservations,  but  capable 
of  support  as  exceptions.  In  the  case  of  The  Earl  of  Cardigan  v. 
Armitage,  2  B.  &  C.  197,  the  words  of  the  deed  were  "except  and  al- 
ways reserved,"  and  they  were  applied,  among  other  things,  to  all  the 
coals  in  the  land  granted,  together  with  right  of  way  to  take  them. 
Bayle,  J.,  treated  this^s  an  exception  of  the  coals  which  were  part 
PL  the  thing  granted,  part  of  the  land,  and  in  esse  at  the  time,  and 
because  they  were  nevei^out  of  the  grantor,  would  have  remained 
to  him  and  his  heirs,  even  without  the  word  heirs,  which  happened 
in  that  instance  to  be  added.  In  respect  to  tlie  right  of  way,  he  quoted 
the  rule  from  the  Touchstone,  that  when  anything  is  excepted,  all 
things  that  are  depending  on  it,  and  necessary  for  obtaining  it,  are  ex- 
cepted also.  * 

This  case  is  very  much  in  point — indeed  it  is  a  direct  authority  for 
the  ruling  below,  and  it  has  been  recognised  and  followed  in  subse- 
quent cases.  Fancy  v.  Scott,  2  Man.  &  Ryl.  335 ;  Douglass  v.  Lock, 
4  Nev.  &  Man.  826. 

In  cur  own  case  of  Shoenberger  v.  Lyon,  7  Watts  &  S.  (Pa.)  184, 
the  words  "excepting  and  reserving"  were  construed  an  exception,  but  ^ 

were  set  aside  on  the  prmciple  that  every  saving  in  a  deed  as  lar'ge  as 
the  grant,  is  void. 

Thus  it  appears,  upon  sufficient  authority,  that  words  of  reservation 
rnay  operate  by  way  of  exception,  and  to  have  any  effect,  must  do  so 
when  the  subject  Of  the  reservation  is  not  something  newly  created, 
as  a  rent  or  other  interest  strictly  incorporeal,  but  is  a  thing  corporate 
and  m  esse  when  the  grant  is  made.  That  the  coal  in  question  was 
land  is  not  to  be  doubted,  since  the  case  of  Caldwell  v.  Fulton,  31  Pa. 
475,  72  Am.  Dec.  760.  As  such,  it  would  have  passed  under  Irwin's 
deed  to  Whitaker,  had  it  not  been  excepted  out  of  the  grant.  At  the 
date  of  the  deed,  Irwin  held  it  in  fee  simple,  and  because  it  did  not 
pass  by  the  conveyance,  he  continued  to  hold  it  in  fee.  The  word 
heirs  was  not  necessary  in  the  reservation,  for  an  estate  of  inl-|pp'taru:p. 
existed  already  in  Irwin,  and,  unimpaired  bv  the  conveyance,  it  de- 
scended to  his  heirs  at  his  death.  And  so  also  the  right  pf_way,  ex- 
pressly annexed  to  the  estate  in  the  coal,  was  saved  by  the  exception. 
and  descended  to  the  heirs.  The  law  would  have  given  it  if  the  par- 
ties had  not  expressly  reserved  it. 

But  what  was  the  extent  of  the  coal  reservation  ?  It  is  an  undoubted 
rule  that  an  exception  in  a  deed  is  to  be  construed  most  strongly 
against  the  grantor,  and  most  favourably  to  theg^rantee.  And  upon 
tliis  principle  it  is  claimed,  that  it  was  only  a  special  and  temporary 
use  of  the  coal  that  was  reserved  to  Irwin  himself,  a  right  to  use  the 
coal  during  his  life,  but  which  ceased  at  his  death.  We  cannot  so 
read  the  clause.  "The  coal  contained  in  said  piece  or  parcel  of  land" 
was  the  subject  of  the  reservation.  If  that  means  less  than  the  whole, 
how  much  less?  what  proportion  of  the  coal  was  reserved?     Words 


452 


DERIVATIVE   TITLES 


(Part 


not  larger  than  these  were  construed  to  mean  the  whole  of  a  coal  right 
in  Caldwell  v.  Fulton,  and  we  confess  we  should  not  know  by  what 
rule  to  restrict  these  words  if  we  felt  called  upon  to  impose  a  restric- 
tion where  the  parties  imposed  none.  Do  tlie  words  "for  his  own 
use"  amount  to  a  restriction?  Sometimes  the  use  is  limited  in  point 
of  duration,  as  while  the  grantee  is  tenant  of  a  particular  messuage, 
or  so  long  as  he  manufactures  a  specific  producl;ion ;  but  here  it  is  as 
general  and  absolute  as  so  few  words  could  make  it.  "For  his  own 
use,"  means,  in  such  a  reservation,  the  same  dominion  and  proprietor- 
ship over  the  coal  that  he  would  have  had  if  he  had  made  no  deed  for 


tie  land.    He  held  it  for  his  own  use  in  all  the  forms  that  it  was  ca 


pable  of  being  used  at  the  date  of  his  deed — he  held  it  just  as  absolutely 
after  his  deed  was  delivered 
'The  judgment  is  affirmed.^^"  {^fiu,J2^  ^>»^>v<u^ 


U^  \*jlJU 

55 


d^HA^ 


KISTER  v.  REESER. 

(Supreme  Court  of  Pennsylvania,  1881.     98  Pa.  1,  42  Am.  Rep.  608.) 

IVegpass  .fluare  claiisum  f regit,  by  Isaac  Kister  against  George  Rees- 
er  et  al.  On  the  trial,  before  Fisher,  P.  J.,  the  following  facts  ap- 
peared : 

By  indenture  dated  September  30th,  1865,  William  Reeser  and  wife 
granted  and  conveved  to  Henry  H.  Drorbaugh  and  his  heirs  a  tract  of 
land  containing  about  nineteen  acres^part  of  a  larger  tract  of  land 
owned  by  the  said  William  Reeser  in  fee.  This  deed  contained  the 
following  clause :  "The  said  William  Reeser  doth_reserve  a  road  ten 
feet  wide  along  the  line  of  Joseph  Burger,  to  be  shut  at  each  end  by 
a  bar  or  gate."  Burger's  land  formed  one  of  the  boundaries  of  the 
tract  granted. 

By  indenture  dated  November  13th,  1867,  Drorbaugh  and  wife 
granted  and  conveyed  the  said  tract  to  Isaac  Frazer  and  his  heirs. 
This  deed  contained  the  following  recital :  "This  being  the  same  tract 
of  land  tliat  William  Reeser  deeded  to  Henry  H.  Drorbaugh  by  deed 
dated  the  thirtieth  day  of  September  A.  D.  one  thousand  eight  hundred 
and  sixty-five,  wherein  said  William  Reeser  reserves  a  road  ten  feet 
in  width  along  thelmeof  Joseph  Burger's  land,  to  be  shut  at  each  end 
with  a  bar  or  gate/* 

By  indenture  dated  December  9th,  1867,  Frazer  and  wife  granted 
and  conveyed  the  same  tract  to  Isaac  Kister  and  1^;§  heirs.  This  deed 
also  contained  the  last-mentioned  recital. 

2  0  In  Fancy  v.  Scott,  2  Mann.  &  R.  335  (1828),  there  was  a  declaration  in 
trespass  for  breaking  and  entering  the  plaintiff's  close,  spoiling  the  grass,  and 
digging  peat  and  turf.  The  defendant  in  his  plea,  set  up  that  he  had  leased 
the  said  close  to  the  plaintiff  resendng  all  pits,  quarries,  and  mines,  etc^  To 
this  plea  there  was  a  demurrer.  In  sustaining  the  demurrer  Bajley,  J.,  said, 
"The  pleas  are  clearly  bad.  A  landlord  cnnnof.  r(;^aerve  a  component  part  of  tlie 
land  demised  or  granted,  as  he  iias  done  here." 


Ch.3) 


THE   PROPERTY  CONVEYED 


453 


William  Reeser  died  in  March,  1872.  Prior  to  his  death  the  said 
William  Reeser,  by  indenture  dated  March  3d,  1872,  granted  and  con- 
veyed to  his  son,  George  Reeser.  Sr..  one  of  the  defendants,  another 
portion  of  the  said  large  tract  of  land.  This  deed  contains  no  mention 
of  the  privilege  of  the  said'  road  reserved  by  the  said  William  Reeser  ,       . 

in  his  deed  to  Drorbaugh.     George  Reeser,  Sr.,  however,  claims  under  /» '*< •'^'^'©^'^'^ 
the  said  reservation  the  use  of  a  ten-feet-wide  way  over  tlie  land  of. 
Isaac  Kister  along  the  line  of  Joseph  Burger. 

In  April,  1880,  Isaac  Kister  placed  a  permanent  fence  at  each  end 
of  the  line  of  reservation  mentioned  in  the  deed  of  William  Reeser  to 
Drorbaugh.  A  short  time  afterwards  George  Reeser,  Sr.,  and  the 
other  defendants,  broke  down  the  said  fences,  entered  upon  Kister's 
land,  and  drove  a  wagon  across  the  same.     For  this  alleged  trespass 


(X(k^UU>.0UA 


Igaac  Kister  brought  this  suit.  '   '    \2^ 

The  plaintiff  requested  the  Court  to  charge,  substantially,  that  the  **-^L4«   X^H^ 

right  to  a  road  reserved  by  William  Reeser  in  his  deed  to  Drorbaugh      O 
not  jTaying'beepreserved  to  the  hei  rs  and  assigns  of  ^Villi^im  Reeser. 
ceaseTanH  determined' on  the  deathT^  William  Ree-^er  in  ATarc|i^  187^.  C^rfjt^^  g€c^ 
4n^!^thaTTuch  reservation  was  no  justificationiif  the  trespass  commit=-^-  (JjC^i.a-aX 
ted  by  the  defendant.,  TheCourt  declined  so  to  charge.  O'^ 

The  defendants  submitted,  inter  alia,  the  following  point : 

2.  That  under  the  legal  effect  of  the  reservation  in  said  deed  from  ^ #/c«».rf^d^ 
William  Reeser  to  Drorbaugh,  the  portion  of  land  ten  feet  wide  along         iTTl*  • 
the  line  of  Joseph  Burger,  for  the  use  of  a  road,  is  excepted  out  of  the  ^Crvt-^CtC^uc-en 
grant,  and  remained  as  it  was  before  for  tlie  purposes  of  a  road ;  that 
the  evident  purpose  of  said  reservation  was  to  furnish  egress  and  rer 
gress  from  the  other  lands  of  the  gj^rantor  to  and  from  the  public  rQgd 
leading  to  Goldsboro',  and  the  defendant,  being  the  owner  of  those 
other  lands,  had  a  legal  right  to  pass  in  and  out  to  said  public  road,  over 
the  said  land  reserved  in  said  deed,  and  committed  no  trespass  in  do- 
ing so. 

Answer.  Under  the  reservation  in  the  deed  of  William  Reeser  and 
wife  to  Henry  H.  Drorbaugh  for  nineteen  acres  and  thirty-five  perches, 
dated  September  30th,  1865,  the  defendant  had  a  legal  right  to  pass 
over  the  road  reserved  Jn  said  deed,  and  did  not  commit  a  trespa^ 
by  entering  as  he  did  the  premises  of  the  plaintiff. 

The  Court  further  instructed  the  jury  that  the  plaintiff  was  not  en- 
titled to  recover,  and  directed  them  to  find  for  the  defendants- 
Verdict  accordingly  for  the  defendants,  and  judgment  thereon.    The 
plaintiff  took  this  writ  of  error,  assigning  for  error  the  answers  to 
points  as  above,  and  the  instruction  to  find  for  the  defendants. 

Trunkey,  J.  William  Reeser,  by  deed  dated  September  30th,  1865, 
conveyed  to  Drorbaugh  part  of  a  tract  of  land  which  he  then  owned, 
and  Drorbaugh's  title  has  been  vested  in  the  plaintiff.  The  deed  con- 
tains this  clause:  "The  said  William  Reeser  doth  reserve  a  road  ten 
feet  wide  along  the  line  of  Joseph  Burger,  to  be  shut  at  each  end  with 
a  bar  or  gate.''     Prior  to  the  conveyance  there  was  neither  a  public 


454  DERIVATIVE  TITLES  (Part  2 

nor  private  road  over  the  land.  The  owner  in  fee  of  land  may  travel 
over  it  when  and  where  he  pleases,  and  it  would  be  vain  to  speak  of 
his  right  of  way  within  his  lines.  William  Reeser  died  in  1872.  The 
court  properly  treated  the  question  as  one  of  law ;  for,  aside  from  the 
conceded  facts,  there  was  no  evidence  to  affect  the  construction  of  the 
deed  or  clause  of  reservation.  If  tha^laus^^r^xception  of  land 
ten  feet  wide,  next  to  Burner's  ime^n^pIamtir^va^To^CTtitled  to 
recover!  But  if  it  is  a  reservation  of  a  way  over  said  land,  the  def  en d- 
ants  were  tresj^sers.  i'he  land  was  granted  in  fee  and  a  road  re- 
served next  Burger's  line.  This  was  to  be  shut  at  each  end,  and,  sub- 
ject to  the  grantor's  use  for  a  road,  the  grantee  could  enjoy  it  for  all 
purposes.  The  word  road  has  never  been  defined  to  mean  land ;  it 
is  difficult  to  find  a  definition  which  does  not  include  the  sense  of  way, 
though  the  latter  word  is  more  generic,  referring  to  many  things  be- 
sides roads.  Road  is  generallv  applied  to  highway,  street,  or  lane, 
often  to  a  pathway,  or  private  way,  yet  strictly  it  means  only  one  par- 
ticular kind  of  way.  Its  sense  in  this  deed  is  very  clear.  Taking  the 
entire  clause,  with  reference  to  the  grant,  it  means  the  ^gse^v^tion  of 
a  way.  This  is  as  plain  as  if  the  word  way  were  in  place  "of™ oad. 
Lawyer  and  layman  alike  would  understand  the  word  road  in  this 
clause  in  the  same  sense  as  it  is  used  in  the  statutes  providing  for  grant 
of  "private  roads."  A  private  road,  obtained  bv  proceedin^'-s  under 
those  statutes,  is  a  rnere  wav.  the  owner  of  the  vyny  hnvin,o-  no  interest 
in  the  land. 
^'^  A  private  way  is  an  incorporeal  hereditament  of  a  real  nature,  en- 

tirely different  from  a  common  highway;  it  is  "tine  right  of  going  over 
another  man's  ground."  Where  land  is  granted  and  the  right  of  way 
reserved,  that  right  becomes  a  new  thing,  derived  from  die  land :  and 
although,  before  the  deed,  the  grantor  had  the  right  of  way  over  the 
land  whenever  he  chose  to  exercise  it,  yet  when  he  conveyed  the  land 
the  reservation  was  a  thing  separated  from  the  right  of  the  grantee  in 
the  land :  State  v.  Wilson,  42  Me.  9.  A  reservation  is  the  creation  of  a 
rjght  or  interest  which  had  no  prior  existence  as  such  in  a  thinr.-Qr 
part  of  a  thing  granted.  It  is  distinguished  from  an  exception  in  that 
it  is  of  a  new  right  or  interest.  An  e^xcgg]jgjj|  is  always  of  part  of  the 
-^ /^^v*.  thing  granted,  it  is  nf  the  whole  nf  th*  part_oxrepted.     A  reservation 

^•'^['3--— 1  may  be  of  alright  or_interest  in  the  particular  part  which  it  affects. 

•  v^^^t^  These  terms  are  often  used  in  the  same  sense,  the  technical  distinction 

\^  being  disregarded.     Though  ^pt  words  of   reservation  be  u<^p<\  thev 

wjll  be  construed  as  an  exception,  if  such  was  the  design  of  the  parties. 
Thus,  when  a  deed  in  fee  of  land  was  made,  the  grantor  "saving  and 
reserving,  nevertheless,  for  his  own  use  the  coal  contained  in  the  said 
piece  or  parcel  of  land,  together  with  free  ingress  and  egress  by  wagon- 
road  to  haul  the  coal  therefrom  as  wanted,"  it  was  held  that  the  saving 
clause  operated  as  an  exception  of  the  coal.  The  coal  was  land  and  the 
reservation  of  that  part  of  the  land  excepted  it  from  the  grant.  It 
was  a  thing  corporate,  existed  when  the  grant  was  made,  and  differed 


Ch.  3)  THE  PROPERTY  CONVEYED  455 

from  something  newly  created,  as  a  rent  or  other  interest  strictly  in- 
corporeal :    Whitaker  v.  Brown,  46  Pa.  197.     H,ere.  the  saving  clause  Ji^ 
created  the  way  over  part  of  the  land  granted,  a  right  strictly-  incor- 
RQreal,  and  is  not  an  exception  of  part  of  the  land  contained  in  the 
grant. 

judgment  reversed,  and  venire  facias  de  novo  awarded.^* 


...^fU^    .-  ^     DEE  V.  KING.    '^  ^Vui  JtyjCcA-^ZC^n^'  ^ 

(Supreme  Court  of  Vermont,  1905.    77  Vt.  230,  50  Atl.  830,  GS  L.  R.  A.  SCO.) 

Watson,  J.  When  tliis  case  was  here  before  {7Z  Vt.  olh,  50  Atl. 
1109,)  the  decree  was  reversed  pro  forma  and  the  cause  remanded  for 
ac^ditional  findino-s  of  fact  by  the  special  master,  as  to  the  time  when. 
with  re_ference  to  March  16.  1882.  [^ared  Dee  asked  and  obtained  per- 
mission of  the  defendant  to  c^ross  his  ^hree-acre  piece  of  land  on  the 
east  side  of  the  Central  Vermont  Railroad.  On  tlie  hearing  before  the 
master  for  this  purpose,  the  orator  introduced  no  further  evidence. 
The  defendant  testified  in  his  own  behalf,  and  from  his  testimony  the 
fact  is  found  that  Tared  Dee  first  asked  and  obtained  of  the  defendant 
pp^f-missinn  fn  rrnss  that  land  in  January.  1882.  The  orator  seasonably 
objected  and  excepted  to  the  defendant's  testifying  to  any  conversation 
had  between  him  and  Jared  Dee  on  this  point,  because  Jared  Dee  was 
dead. 

The  defiendant  was  called  and  used  as  a  witness  by  the  orator  at  the 
first  hearing,  upon  the  question,  among  other  things,  whether   Tared^t-^^^i^  <^^^  f 
Dee  passed  through  and  over  the  three-acre  piece,  his  habit  and  custom       !•        -     •    /) 
jn  so  doing,  to  what  extent,  under  what  circumstances,  and  for  what  .yA-*.4.**»-*'<-*-4^  ' 
purpose.    The  orator  made  the  defendant  a  general  witness  upon  that     to 
question,  and  he  thereby  waived  the  statutory  incompetency  of  the 

21  "It  is  to  be  observed  that  a  rjprht  of  yay  cannot,  in  strictness,  be  roade  the  ^ 

subject  either  of  exception  or  reiser vatlo'n.     It  is  neither  parcel  of  tlie  tiling    —   ''  /- - 

granted,  nor  is  it  issuinj;  out  of  the  thing  granted;    the  former  being  essential  ^.c*^-v<tv 

to  an  exeeiJtiou,  and  the  latter  to  a  reservation.     A  riglit  of  way  reserved  (using 

that  woid  in  a  somewhat  popular  sense)  to  a  lessor,  as  in  the  present  case, 

is.  in  strictness  of  law,  an  easement  newly  created  by  wnv  of  grant  from  tlie 

g;rantee  or  lessee,  in  the  same  manner  as  a  right  of  snoiting  or  tisliing.  which 

has  been  lately  much  considered  in  the  cases  of  Doe  (iein.     Itouglas  v."  Lock, 

2  A.  <X:  ]<:.  70.T  (1835),  and  Wickham  y.  Hawker,  7  M.  &  W.  03  (1.S40).     It  is  not, 

indeed,  stated  in  this  case  that  the  lease  was  executed  by  the  lessee,  which 

would  be  essential  in  order  to  establish  the  easement  claimed  by  the  lessors 

as  in  the  nature  of  a  grant  from  tlie  lessee;    but  we  presume  that  in  fact  the 

deed  was,  according  to  the  ordinary  practice,  executed  by  both  parties,  lessee 

as  well  as  lessors."     Railway  Co.  y.  Walker,  2  A.  &  E.  (.\.  S.)  940,  'Jo7  (1S42), 

per  Tindal,  C.  J.     But  Cf.  May  v.  Belleville,  [IDOo]  2  Ch.  G05. 

It  has  been  held  that,  even  though  the  statute  has  made  uitnecessary  the  _ns^ 
of  the  \vord  "heirs"  to  create  a  tee  simple,  a  reservation  of  a  rigut  m  ree  re(niires 
d.  ntoss  y.  McCee,  OS  Md.  381)?  b(>  Atl.  It:^^  (1!>04) ;    IvarnnilU 


^\1-^  -mLC-  ■V't^tJ-  L-i. 


^^magic  vvprd.  TRoss  v.  McCee,  OS  Md.  380,  b(>  Atl.  IT^S  (l!)U4) ;  Karnniiier 
^^rotz.ls  Iowa,  352  (1S(J5) ;  Euhnke  v.  Aubert,  58  Or.  6,  113  I'ac.  3S  (1011), 
contra. 

Uf.  Lathrop  v.  Eisner,  93  Mich.  599,  53  N.  W.  701  (1802). 


456  DERIVATIVE  TITLES  (Part  2 

defendant  as  a  witness.  Paine  v.  McDowell,  71  Vt.  28,  41  Atl.  1042 ; 
Ainsworth  v.  Stone,  73  Vt.  101,  50  Atl.  805, — and  he  could  not  after- 
wards complain  because  the  defendant  gave  testimony  in  his  own  be- 
half more  fully  upon  the  same  subject  matter. 

Tared  Dee  having  obtained  permission  of  the  defendant  to  cross  the 
three-acre  piece  within  fifteen  years  next  after  March  16.  1867^  the 
orator  can  haveno  prescriptive  way  over  it.  A  right  of  way  over  this 
land  is  neither^sef  forth  nor  claimed  by  the  orator  in  his  bill;  yet  in 
one  aspect  of  the  case  whether  he  has  such  a  way  is  material. 

The  only  right  of  wav  claimed  ^  ^  ]|j,m^jy^r  over  the  defendant's 
land  so  far  as  appears  by  the  bill,  is  over  the  one-half  acre  piece  on  the 
\vest  side  of  the  Central  Vermont  Railroad,  as  reserved  by  Jared  Dee 
in  his  deed  October  7,  1862,  conveying  that  land  to  William  W.  Pet- 
tingill.  In  that  deed  immediately  following  the  description  of  the  land 
conveyed  is  the  clause  "reserving  the  privilege  of  a  pass. from  the  high- 
way past  the  house  to.  the  railroad  in. my  usual  place  of  crossing." 
The  defendant  contends  that  these  words  are  only  a  resen^ation  of  a 
personal  privilege  to  Jared  Dee  which  could  not  pass  to  his  heirs  or 
assigns  because  no  words  of  inheritance  or  assignment  were  used  in 
connection  therewith;  while  the  orator  contends  that  the  clause  has 
the  force  of  an  exception,  and  that  the  servient  estate  thereby  created 
passed  to  the  subsequent  owners  of  the  dominant  estate  without  such 
words  of  limitation  being  used.  Much  depends  upon  the  construction 
given  in  this  regard,  in  the  disposition. of  the  case.  Lord  Coke  says 
that  "reserving"  som_etimes  has  the  force  of  saving  or  excepting,  "so 
as  sometime  it  serveth  to  reserve  a  new  thing,  viz.  a  rent,  and  some- 
time to  except  part  of  the  thing  in  esse  that  is  granted."  Co.  LitL 
143,  a.  Sheppard  says  that  "a  reservation  is  a  clause  of  a  deed  whereby 
the  feoffor,  donor,  lessor,  grantor,  etc.,  doth  reserve  some  new  thing  to 
himself  out  of  that  which  he  granted  before.  And  this  doth,  most  com- 
monly,  and  properly,  succeed  the  tenendum,  *  *  *  This  part  of 
the  deed  doth  differ  from  an  exception,  which  is  ever  of  part  of  tjie 
thing  granted,  and  of  a  thing  in  esse  at  the  time,  but  this  is  of  a  thing 
newly  created  or  reserved  out  of  a  thing  demised  that  was  not  in  esse 
before,  so  that  this  clause  doth  always  reserve  that  which  was  not  be- 
fore, or  abridge  the  tenure  of  that  which  was  before."  Shepp.  Touch. 
80.  Again  the  same  author  says,  that  an  exception  clause  most  com- 
monly and  properly  succeeds  the  setting  down  of  the  things  granted; 
yt,  that  the  thingjexcepted  is  exempted  and  does  .not  pass  by  the  grant. 

Page  77 .  The  same  principles  were  largely  laid  down  by  this  Court  in 
Roberts  v.  Robertson,  53  Vt.  690,  38  Am.  Rep.  710.  There  the  deed 
given  by  the  plaintiff  contained  a  specific  description  of  the  land  con- 
veyed, and  a  clause  "reserving  lots  *  *  *  32^  33^"  etc.  Under 
this  clause  the  plaintiff  claimed  title  to  the  two  lots  above  named.  The 
court,  after  stating  the  offices  of  an  exception  and  of  a  reservation  the 
same  as  above,  said  these  terms,  as  used  in  deeds,  are  often  treated  as 
synonymous  and  that  woxds  creatinjs;'  an  exception  are  to  have  that 


Ch,  3)  THE  PROPERTY  CONVEYED  457 

effect,  although  the. word  reservation  is  used.     It  was  held  that  the 
clause  should  be  construed  as  an  exception. 

In  England  it  has  been  held  that  a  rig^ht  of  way  cannot  in  strictness  i^^i^^^JsL. 
be  made  the  subject  of  either  an  exception  or  a  reservation ;    for  it  is  ^?^^|V^  ' 
neither  parcel  of  the  thing  granted,  an  essential  to  an  exception,  nor  is  ^  . 

it  issuing  out  of  the  thing  granted,  an  essential  to  a  reservation.  Doe -*''^^'^tP''^*_ 
v.  Lock,  2  Ad.  &  E.  705 ;  Durham,  etc.,  R.  R.  Co.  v.  Walker,  2  Q.  B.  •U/4-«^»>u'^ 
945.  But  there,  as  in  this  country,  quasi  easements  are  recognized  in 
law,  such  as  a  visible  and  reasonably  necessary  drain  or  way  used  by 
the  owner  of  land  over  one  portion  of  it  to  the  convenient  eniovment  of 
another  portion,  and  there  has  never  been  any  separate  ownership  of 
the  quasi  dominant  and  the  quasi  servient  tenements.  As  such  ease- 
ment, a  drain  is  classed  as  continuous,  because  it  may  be  used  continu- 
ously without  the  intervention  of  man ;  and  a  right  of  way  as  noncon- 
tinuous  because  to  its  use  the  act  of  man  is  essential  at  each  time  of 
enjoyment.  In  Barnes  v.  Loach  (1879)  4  Q.  B.  D.  494,  it  was  said  re- 
garding such  easements  of  an  apparent  and  continuous  character,  that 
if  the  owner  aliens  the  quasi  dominant  part  to  one  person  and  the 
quasi  servient  to  another,  the  respective  alienees,  in  the  absence  of  ex- 
press stipulation,  will  take  the  land  burdened  or  benefited,  as  the  case 
may  be,  by  the  qualities  which  the  previous  owner  had  a  right  to  attach 
to  them.  And  in  Brown  v.  Alabaster  (1888)  Z7  Ch.  D.  490,  it  was  said 
that  although  a  right  of  way  by  an  artificially  formed  path  over  one  A(t#<*  "^ 
part  of  the  owner's  land  for  the  benefit  of  the  other  portion,  could  not  JL^^^^^^X* 
be  brought  within  the  definition  of  a  continuous  easement,  it  might_be 
governed  by  the  same  rules  as  are  apparent  and  continuous  easements. 
"Cases  involving  quasi  easements~have  been  beTore  this  Court.  In 
Harwood  v.  Benton  &  Jones,  32  Vt.  724,  the  owner  of  a  water  privilege, 
dam,  and  mill,  also  owned  land  surrounding  and  bordering  upon  the 
mill  pond  and  mill,  which  he  subjected  to  the  use  and  convenience  of 
the  mill  privilege  and  mills.  A  part  of  these  adjacent  lands  thus  sub- 
jected was  conveyed  without  any  stipulation  in  the  deed  that  any  servi- 
ent condition  attached  thereto.  The  condition  of  the  estate  had  been 
continuous,  was  obvious,  and  of  a  character  showing  that  it  was  design- 
ed to  continue  as  it  had  been.  The  Court  said  this  was  a  palpable  and 
impressed  condition,  made  upon  the  property  by  the  voluntary  act  of 
the  owner.  It  was  held  that,  without  any  stipulation  in  the  deed  upon 
that  subject,  the  law  was  that  the  grantee  took  the  land  purchased 
by  him,  in  that  impressed  condition,  with  a  continuance  of  the  servitude 
of  that  parcel  to  the  convenience  and  beneficial  use  of  the  mill.    It  was  jV 

there  laid  down  as  an  umquestioned  proposition  that  "upon  tlie  sever-  3^*2  V*, 
ance  of  a  heritage,  a  grant  will  be  implied  of  all  those  continuous  and 
apparent  easements  which  have  in  fact  been  used  by  the  owner  during 
the  umty,  though  they  have  had  no  legal  existence  as  easements  ;"_apd 
that  tlie  doctrine  was  equally  -\vell  settled  that  the  law  will  imply  a  re.s- 
ei^^^^iion  of  like  easements  in  favor  of  the  part  of  the  inheritance  retain- 
ed by  the  grantor.     In  Goodall  v.  Godfrey,  53  Vt.  219,  38  Am.  Rep. 


458  DERIVATIVE  TITLES  (Part  2 

671,  a  "visible,  defined  way  in  use  for  the  obvious  convenience  of  the 
whole  building"'  was  in  question,  consequent  on  a  division  of  the  prop- 
erty among  the  representatives  of  the  deceased  owner,  and  the  same 
principles  of  law  were  applied.  And  in  Willey,  Admx.,  v.  Thwing,  68 
Vt,  128,  34  Atl.  428.  applying  the  same  doctrines,  a  right  of  way  was 
upheld  under  an  implied  reservation. 

In  this  country  it  is  commonly  held  that  a  wav  may  be  the  subject  of 
a  reservation,  and  in  many  cases  courts  of  high  standing  have  held 
that  it  mav  properly  be  the  subject  of  an  exception  in  a  grant.  While 
it  is  true  that  an  owner  of  land  cannot  have  an  easement  in  his  own  es- 
tate in  fee,  he  may  as  before  seen  have  a  quasi  easement  over  one  por- 
tion in  the  character  of  a  visible,  travelled  way  reasonably  necessary 
to  the  convenient  enjoyment  of  another  portion,  and  when  such  a  way 
exists,  there  would  seem  to  be  no  substantial  legal  reason  why  it  may 
not  be  treated  as  a  thinjg  in  being,  and  as  a  part  of  the  estate  included 
in  the  descri])tion  of  the  grant  be  made  an  exception  in  a  deed  of  the 
land  over  which  the  way  is,  when  such  appears  to  havp  hepn  tl2Li!l!-1"' 
tion  of  the  parties.  I'hat  this  is  the  principle  upon  which  a  clause  re- 
serving a  way  is  construed  as  an  exception  appears  from  Chappell  v. 
N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  62  Conn.  195,  24  Atl.  997,  17  L.  R.  A. 
420,  which  is  more  particularly  referred  to  later.  There  the  Court 
said :  "Then  too  the  right  to  cross  was,  in  a  certain  sense,  a  ri^ht 
existing  in  the  grantors  at  the  date  of  the  deed.  It  was  a  part  of  their 
full  dominion  over  the  strip  about  to  be  conveyed  by  the  de^fl,  nnd  nnt- 
a  right  to  be,  in  effect,  conferred  upon  them  by  the  grantees.  It  was 
something  which  the  'reservation'  in  effect  'excepted'  out  of  the  opera- 
tion of  the  grant."  „^rrr:=^.T: "- 

The  distinction  between  a  reservation  and  an  exception  of  a  way  is 
best  understood  by  an  examination  of  cases  involving  clauses  very  simi- 
lar to  the  one  here  under  consideration,  yet  so  unlike  as  to  re(|uire  cHf- 
ferent  constructions  in  this  regard.  In  Ashcroft  v.  Eastern  R.  R.  Co., 
126  Mass.  196,  30  Am.  Rep.  672,  the  clause  was  "reserving  to  myself 
the  right  of  passing  and  re-passing,  and  repairing  my  aqueduct  logs 
forever,  through  a  culvert  *  *  *  to  be  built  and  kept  in  repair 
by  said  company;  which  culvert  shall  cross  the  railroad  at  right 
angles,"  etc.  It  was  held  that  the  provision  that  the  grantee  should 
build  and  keep  in  repair  the  culvert  was  an  essential  part  of  the  grant. 
and  clearly_indicated  that  the  intention  of  the  parties  was  to  confer 
ujjon  the  grantor  a.  new  right  not  before  vested  in  him,  which,  there- 
fore, cmild  not  be  the  subject  of  an  exception.  In  Clatlin  v.  Boston  & 
Albany  CCo.,  157  Mass.  489.  Z2  N.  E.  659,  20  L.  R.  A.  638.  the  clause 
was  '"reserving  to  ourselves  the  right  of  a  passage  way  to  be  construct- 
ed and  kept  in  repair  by  ourselves."  There  was  no  evidence  of  an 
existing  way  across  the  land.  It  was  held  to  be  a  reservation  and  not 
an  exception.22     In  Chappell  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.  before 

22  But  see  Railey  v.  Affawam  Nat.  Bank.  100  lMas5?.  20.  76  N.  E.  449.  .3  L.  R. 
A.  (X.  S.)  'JS,  1\2  Am.  St.  K^p.  296  (1906),  where  there  was  involved  the  con- 


Ch.  3)  THE  PROPERTY  CONVEYED  459 

cited,  John  W.  and  Benjamin  F.  Brown,  in  1851,  owned  a  piece  of  land 
in  New  London  fronting  on  the  river  Thames  and  lying  between  that 
river  and  Bank  street.     On  the  river  front  was  a  wharf  and  docks. 
Between  the  wharf  and  Bank  street  was  about  one  and  one-half  acres 
of  land  used  by  the  Browns  in  carrying  on  a  coal  and  wharfage  busi- 
ness.    The  wharf  was  valuable.     In  that  year  the  Browns  conveyed, 
for  railroad  purposes,  a  strip  of  this  land,  twenty-five  feet  wide,  run- 
ning through  the  land  and  separating  the  wharf  from  the  land  lying 
westerly  of  the  strip  conveyed,  and  rendering  it  inaccessible  except  by 
crossing  the  strip.     This  right  of  crossing  was  indispensable  to  the 
Browns  and  all  who  might  thereafter  own  the  premises  then  owned  by 
them.     The  deed  thus  conveying  this  strip  contained  the  clause  'VAiid  (,^2 C&%>%^%>^ . 
w,e  reserve  to  ourselves  the  priviles^e  of  crossing  and  re-crossing  saicl 
piece  of   land   described,   or   any   part   thereof   within   said   bounds." 
Thevv;ay  at  the  tinie  of  the  date  of  the  deed  was  an  existing  one 
plainly  ^sible,  necessary,  and  in  almost  constant  use.   _The  clause  was 
construed  to  be  an  exception.    In  Bridger  v.  Pierson,  45  N.  Y.  601,  the 
defendant  convevTcnancTto  the  plaintiff  and  immediately  following  the 
description  the  deed  contained  the  clause  "reserving  always  a  right  of 
way  as  now  used  on  the  west  side  of  the  above  described  premises 
*     *     *     from  the  public  highway  to  a  piece  of  land  now  owned  by" 
R.    It  was  held  to  be  an  exce^ion.    In  White  v.  N.  Y.  &  N.  E.  R.  R. 
Co.,  156  Mass.  181,  30  N.  E.  612,  the  action  was  tort  for  the  obstruc- 
tion of  a  private  way  claimed  by  the  plaintiff  over  the  location  of  the 
defendant's  railroad,  under  a  clause  in  a  deed  which  read  "reserving 
the  passway  at  grade  over  said  railroad  where  now  made."    This  way 
had  existed  as  a  defined  roadway  or  cart  track,  and  had  been  used  in 
passing  to  and  from  a  highway  to  and  from  parts  of  tlie  lot  north  of 
the  tracks  before  the  railroad  was  located,  and  before  the  deed  re- 
ferred to  was  given.    The  clause  was  held  to  be  an  exception.    These 
are  but  a  few  of  the  many  decisions  in  different  jurisdictions  which 
might  be  referred  to  upon  this  question,  but  more  are  unnecessary. 

The  language  of  the  clause  under  consideration  cannot  be  said  to  be 
unequivocal.      We   therefore  look   at  the   surrounding  circumstances 
existing  when  the  deed  containing  it  was  made,  the  shuation  of  the 
parties,  and  the  subject  matter  of  the  instrument;    and  in  the  light     /;    j^   •yf'- 
thereof .  the  clause  should  be  construed  according  to  the  intent  of  the  ^^^"y^   -^ 
parties.    At  tlie  time  of  making  this  deed  Jared  Dee  was  the  owner  of  'li/t^tcyCf  " lU 

stmctinn  of  the  follov^irifr  provision  in  a  deed  from  INfoore  to  TTenry:  "A  pas-  ^^r'^*'^''^ 
sa^ewciy  is  to  be  k e i it  open  and  for  use  in  common  between  the  two  houses  ten 
feet  ill  widtn,  Hye  T^et  or  said  passageway  to  be  furnisht^d  bv  said  Llenry  and 
five  feet  bv  me  fron^  land  Iving  east  of  the  h^nd  here  conveyed."  There  w^tsiio 
passaijeway  in^'existence  at  tlie  time  of  the  deed.  Henry  later  conveyed  the 
same  land 'to  ttie  defendant,  who  in  turn  conveyed  it  by  deed  with  full  cove- 
nants for  title  to  the  plaintiff.  T^e  case  arose  upon  a  claim  for  damages  for 
breach  of  the  covenant  against  incuinliralices.  U  iT^j^Jjiintiff  was  allowed  tojie- 
covei~.  despite  the  "Tact  that  JNToore  had  diiHlTefore  the  deed  to  the  piamTlg. 
See,  also.  Ch'iids  v.  BoslOn  &  M.  K.  U.,  iiia  xUass.  'Jl,  UO  N.  E.  957,  48  U  R.  A. 
(N.  S.)  378  (1912). 


460  DERIVATIVE  TITLES  (Part  2 

land  on  the  opposite  side  of  the  railroad,  consisting  of  a  three-acre 
piece  of  tillage  land,  and  a  hill  lot  adjoining  it  on  the  north,  chiefly 
valuable  for  its  sugar  works,  for  its  pasturage,  and  as  a  wood  and  tim- 
ber lot.  The  last  named  lot  is  traversed  its  entire  length  from  north 
to  south  and  about  a  third  of  its  width  from  west  'to  east  by  a  consid- 
erable hill,  more  or  less  ledgy  and  making  it  extremelv  inconvenient  to 
cross  from  the  grantor's  own  land  north  of  the  Fairbanks  land.  ,but 
easily  reached  by  the  now  disputed  right  of  way  arross  the  one-half 
acre  piece,  and  over  the  three-acre  piece  of  tillage  land.  The  greater 
portion  of  Jared  Dee's  sugar  orchard,  timber,  and  wood  was  on  top 
and  east  of  this  hill.  There  was  no  wav  to  or  out  of  the  hill  lot  except 
oyer  the  hill  on  Tared  Dee's  own  land  west  of  the  Fairbanks  land,  or 
out  through  the  three-acre  piece  and  the  one-half  acre  piece  onto  the 
public  highway  leading  westerly  to  Jared  Dee's  house.  For  more  than 
ten  3'ears  next  prior  to  the  time  when  Jared  Dee  gave  the  deed  to 
Pettingill,  the  Dees  had  passed  over  the  one-half  acre  piece  and 
through  the  three-acre  piece  almost  exclusively  for  all  purposes  whejir 
ever  they  went  to  or  from  the  hill  lot,  whether  with  team,  on  foot,  or 
in  any  other-mRn4^€4^.  except  when  they  got  wood  on  the  west  side  of 
the  lot  they  went  from  the  highway  across  the  Fairbanks  farm  west  of 
the  railroad,  thence  over  the  railroad  at  the  "middle  crossing"  onto 
the  hill  lot.  And  on  rare  occasions  they  used  still  another  route  fur- 
ther north  wholly  over  Dee's  land.  It  appears  from  the  deed  itself 
that  in  crossing  the  one-half  acre  piece  they  had  a  particular  place  of 
travelling  then  known  to  both  the  grantor  and  the  grantee,  for  the 
words  used  in  the  deed  in  describing  it  are  "from  the  highway  past  the 
house  to  the  railroad  in  my  usual  place  of  crossing."  Thus  showing 
the  intentioi^  of  the  parties  to  be  that  the  grantor  should  retain  the 
right  to  pass  through  this  land  over  a  visible,  travelled  way  then  in 
existence,  and  that  no  new  way  was  thereby  being  created  for  his  bene- 
fit 

Clearly  under  the  law  and  in  the  light  of  the  foregoing  circumstanc- 
es, the  clause  must  be  construed,  not  as  a  reservation,  but  as  an  excep- 

v(  tiP-"'    When  given  this  construction,  technical  wor3s  of  limitation  are 

not  applicable,  for  the  part  excepted  remained  in  the  grantor  as  of  his 
former  title,  because  not  granted.  Cardigan  v.  Armitage,  2  Barn.  & 
C.  197;  Chappell  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  before  cited;  Win- 
throp  V.  Fairbanks,  41  Me.  307.  We  think  the  parties  intended  that  by 
this  provision  the  grantor  should  permanently  retam  from  the  grant 
for  the  benefit  of  his  land  east  of  the  railroad,  the  wav  over  the  one- 

C^  half_acre  piece,  which  he  had  been  accustomed  to  use  in  crossing  that 

landTto  and  Jrom  the  land  first  name"d  The  way,  thus  retained  became 
an  easement  over  the  half-acre  piece  of  land  and  an  appurtenant  to  the 

^  other  land ;  and  witli  the  latter  it  would  pass  by  descent  or  assignment. 

Subsequent  to  conveying  the  one-half  acre  lot  to  Pettingill,  Jared 

Dee  sold  and  conveyed  the  three-acre  piece,  which  through  mesne  con- 

(  vejyances  has  become  the  property  of  tlie  defendant.     But  this  cannot 


Ch.  3)  THE  PROPERTY  CONVEYED  461 

affect  the  easement  as  an  appurtenant  to  the  hill  lot ;  for  a  right  of  way 
appurtenant  to  land  attaches  to  every  part  of  it.  even  though  it  may  go 
into  the  possession  of  several  persons.  Lansing  v.  Wiswall,  5  Denio 
(N.  Y.)  213 ;  Underwood  v.  Carney,  1  Cush.  (Mass.)  285. 

The  master  finds  that  if  upon  the  facts  reported  the  orator  has  a 
right  of  way  or  a  right  to  cross  over  defendant's  land  to  the  hill  lot, 
then  the  orator  has  suffered  damage  by  reason  of  the  acts  of  the  de- 
fendant complained  of  in  the  bill,  to  the  amount  of  sixty-five  dollars. 
The  orator  can  recover  only  such  damages  as  he  ha<;  siiffered  by  acts 
of  the  defendant  in  obstructing  the  way  across  the  one-half  acre  piece, 
considering  fhe.  fact  that  the  orator  had  no  ris^ht  of  wav^ver  or  right 
to  crossthe  defendant's  three-acre  piece.  Upon  this  basis  the  damages 
have  not  been  assessed.  The  report  should  therefore  be  recommitted 
for  that  purpose,  and  upon  such  damages  being  reported,  a  decree 
should  be  rendered  that  the  injunction  be  made  perpetual,  and  that  the 
defendant  pay  to  the  orator  the  damages  found  with  costs  in  this  Court. 
The  costs  in  the  court  below  should  be  there  determined. 

The  decree  dismissing  the  bill  with  costs  to  the  defendant  is  re- 
versed  and  cause  remanded  with  mandate.^^ 


SMITH'S  EX'R  v.  JONES. 

(Supreme  Court  of  Vermont,  1912.     86  Vt.  258,  84  Atl.  866.) 

Case  for  obstructing  a  private  way.     Plea,  the  general  issue.     Trial 
by  court  on  an  agreed  statement  of  facts  at  the  September  Term,  1911,    ' 
Franklin  County,  Waterman,  J.,  presiding,     judgrnent  for  the  plaintiff'. 
The  defendant  excepted.    The  opinion  states  the  case. 

MuNSON,  J.  The  plaintiff  sues  as  executor  of  Francis  Smith  to  re- 
cover damages  for  the  obstruction  of  a  private  way  which  crosses  the 
defendant's  land,  called  the  Pratt  farm,  to  a  wood  lot  immediately  ad- 
ioising'.  which  belongs  to  Smith's  estate  and  is  in  the  possession  of 
th^  executor.  In  1867  Smith,  then  the  owner  of  both  parcels,  con- 
veyed the  farm  to  a  grantor  of  the  defendant  by  a  deed  which  contained 
the  following  clause:  "Reserving  the  right  at  reasonable  times  and  in 
a  reasonable  way  to  cross  said  land  below  the  road  to  my  wood  lot." 
There  is  no  similar  clause  in  the  succeeding  deeds,  but  each  of  these 
contains  a  reference  to  the  deed  immediately  preceding.  Since  the  con- 
veyance of  Francis  Smith  the  owners  of  the  wood  lot  have  had_no 
other  means  of  reaching  it  than  the  claimed  right  of  way.  The  par-  >?^ 
ties  submit  the  question  whether  this  easement  ceased  with  the  life  of  /  ^  J 
Francis  Smith,  or  inures  to  the  benefit  of  his  heirs  and  estate.  L^"""^ 

There  is  nothing  in  the  agreed  statement  to  show  that  at  the  date 

23  See  Smith  v.  Furbish,  68  N.  H.  123,  44  Atl.  398,  47  L.  R.  A.  226  (1894) ; 
York  Haven  Water  &  Power  Co.  v.  York  Haven  Paper  Co.,  201  Fed.  270,  119 
C.  C.  A.  508  (1912). 


462  DERIVATIVE  TITLES  (Part  2 

of  the  Francis  Smith  deed  there  was  a  defined  and  visible  way  across 
the  grantor's  farm  to  his  wood  lot.     So  the  way  mentioned  in  the  deed 
•^  must^bg  taken  to  be  a  new  way,  not  in  being  previous  to  the  pyfrntinn 

of  the  deed.  I_fjhere  had  been  an  existing  road,  the  provision  in  ques- 
tion could  be  construed  as  an  exception,  and  thus  accomplish  a  re- 
tention of  a  right  of  way.  Dee  v.  King,  77  Vt.  230,  59  Atl.  839,  68  L. 
R.  A.  860.  The  terms  "reservation"  and  "exception"  are  often  used 
as  synonymous  when  the  thing  to  be  secured  tn  thp  grantor  is  a  part  of 
the  granted  premises,  and  when  so  used  they  are  to  be  construed  ac- 
cordingly- 2  Wash.  Real  Prop.  *645.  If  given  their  technical  mean- 
ing, an  exception  is  something  withheld  from  a  grant  which  otherwise 
would  pass  as~a~part  of  it,  while  a  reservation  is  some  newly  created 
right  which  the  grantee  impliedly  conveys  to  the  grantor.  Ashcroft 
v.  Eastern  R.  R.  Co.,  126  Mass.  196,  30  Am.  Rep.  672;  Bailey  v.  Aga- 
wam  Nat.  Bank,  190  Mass.  20,  76  N.  E.  449,  3  L.  R.  A.  (N.  S.)  98, 
112  Am.  St.  Rep.  296.  The  extreme  technicality  of  the  latter  concep- 
tion is  apparent.  It  would  be  easier  and  nearer  the  truth  to  say  that  a 
reservation  is  an  interest  which  the  grantor  creates  and  'excepts  orjrg- 

y^  serves  from  his  grant.     Then  the  interest  classed  as  a   reservation 

would  remain  in  the  grantor,  and  an  easement  in  fee  would  arise  with- 
out the  use  of  the  word  "heirs." 

It  is  still  the  rule  of  the  common  law  that  an  easement  in  fee  caji- 

npt  be  created  bv~way  of  a  reservation  without  wdr'ds  of  inheritajic e . 

•     But  it  has  been  held  that  term<;  pf  reseryation  may  be  construed  as 

constituting  an   exception    wheiT^  this   is   necessary   to   effe£tua te_tli e 

"^  Pi'IPQse„  o_f_  the  parties"""^ It  seems  to  be  considered  that  the  parties 

may  use  the  term  in  a  sense  different  from  its  technical  meaning,  and 
that  their  intent,  if  ascertainable  from  the  subject  of  the  grairLand 
the  surroundmg  circumstances,  should  control  rather  than  the  legal 
implication.  1'he  primary  and  natural  meaning  of  the  word  is  in- 
consistent with  the  effect  given  it  in  the  law  of  this  subject.  To  reserve 
is  to  keep  in  reserve,  to  retain,  to  keep  back,  not  to  deliver  or  make 
over.  Its  meaning  in  law,  as  given  by  Webster's  New  International, 
is  "to  withhold  from  the  operation  of  a  grant  or  agreement."  Unless 
saved  by  the  rule  of  construction  above  stated,  this  inconsistent  tech- 
nical meaning  of  a  word  in  common  use  and  a  forced  implication 
therefrom  will  determine  whether  an  easement,  essential  to  the  use  and 
value  of  an  estate,  shall  end  with  the  life  of  tlie  then  owner  or  go 
with  the  estate  in  perpetuity. 

After  Smith  conveyed  the  Pratt  farm  his  wood  lot  was  entirely  sur- 
rounded by  the  '^'^x^<^'^'\  of  others.  There  is  nothing  to  indicate  that  he 
had  any  personal  interest  in  securing  a'  right  of  way  distinct  from 
his  interest  as  owner  of  the  lot.  His  interest  as  owner  required  that 
he  secure  a  right  of  way  available  after  his  death.  .  The  value  of  jhe 
lot  to  Smith  as  its  then  owner,  irrespective  of  use,  depended  upon  the 
perpetuity  of  the_  means  of  reaching  it.  In  ordinary  circumstances 
there  is  no  ground  for  supposing  that  a  grantor  intends  to  limit  a 


Ch.  3)  TnE  puorEUTY  conveyed  463 

right-  of  this  nature  to  the  uncertain  period  of  his  life,  and  thereby 
materially  lessen  the  value  of  his  land  as  property  in  the  market  or  as 
an  asset  of  his  estate.  The  purpose  of  reserving^  a  ri°;ht  of  way  to  that 
part  of  the  property  retained  by  the  grantor  is  manifest  to  the  grantee, 
even  though  there  is  no  definite  and  visible  way  impressed  upon  the 
^ojj ;  and  the  purpose  is  one  that  points  directly  to  an  intention  on  the 
part  of  the  grantor  to  reserve  a  right  co-extensive  in  duration  with 
ins  estate  in  the  land.  The  purpose  and  nnderstandinsf  of  the  parties 
in  creating  an  easement  of  this  nature  are  so  nearly  universal,  that 
those  using  terms  of  reservation  may  properly  be  held  to  have  intended 
an  easement  in  fee,  when  there  are  no  circumstances  or  restrictive 
words  indicating"  a  contrary  intention. 

Judgment  affirmed.  ^_ 


IIAVERIIILL  SAVINGS  BANK  v.  GRIFFIN. 

(Supreme  Judicial  Court  of  Massacluisctts,  1903.     1S4  Mass.  419,  G8  N.  E.  S39.) 

Bill  in  equity,  filed  August  17,  1901,  to  restrain  the  defendant  from 
us'ing  and  maintainin<y  a  drain  from  certain  l:ind  on  the  east  side  of 
Auburn  Street,  in  Haverhill,  owned  by  the  defendant,  through  land 
on  the_.south  side  of  Sixth  Avenue  in  that  city  owned  by  the  plain- 
tiff,  and  praying  that  the  plaintiff  be  authorized  to  close  the  portion 
oT^^fhe  drain  upon  its  land. 

In  the  Superior  Court  Stevens,  J.,  made  a  decree  granting  the  relief 
prayed  J^ ;  and  the  defendant  ai)peaLed.  At  the  rec|uest  of  the  de- 
fendant the  judge  reported  the  material  facts  found  by  him,  in  accord- 
ance with  R.  L.  c.  159,  §  22>. 

The  report  was  in  substance  as  follows :    The  defendant  is  the  own- 
er of  the  land  described  as  hers  in  the  bill,  bounded  on  the  north  by 
the  land  of  the  plaintiff  also  described  in  the  bill.     Both  parcels  of 
land  were  owned  on  and  before  November,   1883,  by  one  Algernon  /^^^  a-'^*  "^ 
P.  Nichols,  who  had  died  before  the  filing  of  the  bill.    The  land  owned^^^^^^,^^  ^^-t^^-v-c 
byllie""defen3anr'wascoi^^  /a.,».-A-cx 

in  common  form  dated  November  4,   1885.     The  land  owned  by  the  V 

plaintiff  was  conveyed  to  one  Warren  Hoyt  by  Nichols,  by  a  warranty 
deed  in  common  form  dated  July  12,  1886.  In  this  deed  the  plain- 
tiff's lai]d  was  described  as  bounded  on  the  south  by  land  of  Caroline 
Griffn  about  one  hundred  and  seven  feet  more  or  less,  and  contained 
the  following  clause /"And  reserving  to  the  lot  next  southerly  owned 
by  Griffin  the  right  to^  enter  a  drain  into  a  private  sewer  now  on  said 
l^ild*!'  )The  plaintiff  acquired  its  title  through  a  mortgage  given  by 
I:ioyt-^:o  the  plaintiff  and  foreclosed  by  the  plaintiff.  The  mortgage 
di^  not  contain  any  words  relating  to  the  drajn.  After  the  conveyance 
to  the  defendant,  a  drain  was  constructed  by  her  from  the  lot  owned 
by  her  into  and  through  the  Nichols  land,  afterwards  conveyed  to 


464 


DEKIVATIVE  TITLES 


(Part  2 


0 


Hoyt.  This  drain  connected  with  the  sewer  on  Hoyt's  land,  and  from 
the  aucumn  of  1885  was  in  continuous  use  draining  the  defendant's 
lot. 

The  deed  from  Nichols  to  Hovt  containing  the  clause  above  quoted 
was  as  follows,  omitting  the  portion  after  the  habendum  clause  which 
contained  the  ordinary  covenants  of  a  warranty  deed : 

"Know  all  men  by  these  presents  that  I,  Algernon  P.  Nichols,  of 
Haverhill  in  the  County  of  Essex  and  Commonwealth  of  Massachu- 
setts, in  consideration  of  two  thousand  dollars  paid  by  Warren  Hoyt. 
of  said  Haverhill,  the  receipt  whereof  is  hereby  acknowledged,  do  here- 
by give.,  grant  bargain  sell  and  convey  unto  the  said  Warren  yinyt  a 
certain  parcel  of  land  in  said  Haverhill  on  the  southerly  side  of  Sixth 
street  and  bounded  on  the  North  by  said  St.  one  hundred  and  ten  feet 
more  or  less,  on  the  east  by  land  of  the  Children's  Aid  Society,  about 
one  hundred  feet  more  or  less,  on  the  south  by  land  land  of  Caroline 
Griffin  about  one  hundred  and  seven  feet  more  or  less,  and  on  the  West 
by  Auburn  street  about  one  hundred  feet.  Saving  and  reservino-  nev- 
ertheless to  myself  and  my  heirs  and  assi^gns  forever  for  the  use  of 
said  Children's  Aid  Society  a  right  to  pass  and  repass  upon  and  oven  a 
strip  of  land  four  feet  (4  it.)  wide  and  seventy-five  feet  long,  ex- 
tending_southerly  from  Sixth  St.  and  next  to  land  of  said  Society,  so 
as  to  make  a  passage  way  for  the  exclusive  benefit — the  adjoining 
estates  twelve  feet  wide  including  the  eight  feet  in  width  which  I  re- 
■  served  for  such  use  in  my  deed  to  said  Society,  and  reserving  to. the 
lot  next  .sjQUtherlv  owned  by  Griffin  the  right  to  enter  a  drain  into  a 
private  sewer  now  on  said  lanch  To  have  and  to  hold  the  granted 
premises  with  all  the  privileges  and  appurtenances  thereto  belonging 
to  the  said  Hoyt  and  his  heirs  and  assigns  to  their  own  use  andbe- 

BralEy,  J.  At  the  time  the  defendant  obtained  title  to  her  land  the 
drain  was  not  in  existence  and  the  deed  under  which  she  holds  is  silent 
as  to  any  right  to  lay  and  maintain  such  a  drain  through  the  land^f 
the  plainHll^  Neither  does  it  appear  that  this  alleged  right  whereby 
the  defendant  would  be  entitled  to  connect  her  premises  with  the 
public  sewer,  can  be  said  to  arise  by  implication.  See  in  this  connec- 
tion Bumstead  v.  Cook,  169  Mass.  410,  48  N.  E.  767,  61  Am.  St.  Rep. 
293. 

The  case  falls  within  the  well  recognized  General  rule  that  where 
an_  easement  is  not  set  out  in  the  instrument  under,  which  the  parlv 
claiming  the  privilege  holds  title,  it  must  be  sho^^fn  to  be  actually  in 
pvi^pnrf  f)pd  f:r'""'"'tpd  with  the  estate  conveyed  in  order  to  pass^as 
appurtenant  by  implication.  Philbrick  v.  Ewing,  97  Mass.  133 ;  Bass 
V.  Edwards,  126  Mass.  445,  449. 

In  order  therefore  to  maintain  her  claim  she  is  necessarily  obliged 
to  rely  on  the  clause  in  the  deed  to  the  plaintiff's  grantor  which  is  in 
these  words,  "and  reserving  to  the  lot  next  southerly  owned  by  Griffin 
the  right  to  enter  a  drain  into  a  private  sewer  now  on  said  land,"  and 


Ch.  3)  THE  PROPERTY  CONVEYED  465 

the  rights  of  the  parties  must  be  determined  on  the  construction  to  be 
given  to  this  clause. 

At  the  date  of  this  deed  so  far  as  the  facts  appear  by  the  record 
no  such  right  had  been  p^ranted  to  or  prescriptive! v  acquired  bv  the 
defendant,  and  wliich  mig^ht  be  prpservpd  for  her  use  by  the  language 
t^sed,  on  the  ground  that  thereby  an  exception  was  created  and  hence 
the  easement  claimed  was  excepted  from  the  grant.  But  ^they  must 
bp^  ron.'^triipd  as  an  attempt  to  vest  in  the  grantor  a  new  interest  or 
right  that  did  not  before  exist  and  therefore  constitute  a  reservation 
rather  than  an  exception.  Wood  v.  Boyd,  145  Mass.  176,  13  Tvl.  E. 
476;  White  v.  New~Yo?k  &  New  England  Railroad,  156  Mass.  181, 
30  N.  E.  612. 

As  the  defendant  was  not  a  party  but  a  stranger  to  the  deed  she 
could  gain  no  rights  under  the  reservation  which  enured  solelv  to  the 
grantor,  and  for  this  reason  she  did  not  acquire  an  easement  under  it. 
IVlurphy  V.  Lee,  144  Mass.  371,  3^4,11  N.  E.  550. 

It  follows  that  the  decree  entered  in  the  Superior  Court  was  right 
and  should  be  affirmed.    Decree  affirmed.^      _:\ 

24  Cf.  Lipsky  v.  Heller,  199  Mass.  310,  85  N.  E.  453  (190S) ;    Martin  v.  Cook, 
102  Mich.  267.  60  N.  W.  679  (1894) ;    Corning  v.  Troy  Iron  &  Nail  Factory,  40 
N.  Y.  191  (1869) ;    Bartlett  v.  Barrow^s,  22  E.  I.  642,  49  Atl.  31  (1901) ;    Wall  v. 
Wall,  126  N.  C.  405,  35  S.  E.  811  (1900). 
Aig.Pbop.— 30 


^ 


/ 


o^-r 


4CG  DEEiVATivB  TITLES  (Part  2 

CHAPTER  IV 
CREATION  OF  EASEMENTS  BY  IMPLICATION » 


COPPY  V.  I.  DE  B. 

(1406.    Y.  B.  11  Hen,  VII,  25,  pi.  G.) 

William  Coppy  brought  an  action  on  the  case  against  J.  de  B.,  and 
counted  that  according  to  the  custom  of  London,  wh.ere  there  were 
two  tenements  adjoining,  and  one  had  a  gutter  running  over  the  tene- 
nient  of  the  other,  the  other  cannot  stop  it,  though  it  be  on  his  own 


1  The  or(1ipn|-Y  w'nY  fif  fr^'vt'rT  p-^ements  and 


[jrofits  of  ronrse  is  Irv  grnnt. 
sealed  iiistrmueiit.     Tiie  prul »- 


\yhicll.  according'-  f  "^'"^  f^nininun   hiw,   mt^Miif  liu   !i    gM 

leuis  tif  diHkulty  tliat  arise  in  connection  wirli  such  express  grants  are  in  i;en- 
eral  the  same  prulileais  that  arise  in  conveyances  hy  deed  y;enerall\'.  and  are 
sntticieiitly  treated  inider  otlier  lieads.  IIqwpvpi- '"  H't^  martcr  of  tiie  suttlciency 
o f  tlie  words  in  the  ?;rant  to  serve  to  create  de  novo  un  easementThere  ariae  ue- 
cnsio!i;inv  (pit'ijtions  of  snecial  dirnciiLJv. 

••W'itli  tlie  appurtenances''  does  not  serve  to  create  an  easement  de  novo,  even 
where  the  easement  claimed  had  a  de  facto  existenc-e  prior  to  the  convey- 
ance. Wliailey  v.  Thompson.  1  Hos.  &  P.  371  (IT'-IO);  Gayetty  v.  Hetlnme.  il 
]\Fass.  4!>.  7  Am.  Dec.  ISS  (1.SJ7);  I'arsons  v.  .Johnson.  PS  X.  Y.  K\2..  2:'>  Am.  Uep. 
141)  (1S77).  Compare  James  v.  riant,  4  A.  &  V..  1V,\  (lN:!(i).  "Tliere  are,  linw- 
ev^M-.  ani.-mnrds  for  tlie  nurnose  t>fi)assinj  such  an  ea.sement ;  and,  if  you  will 
oiTTyinsertJJii^  words  'or  thereNvTrii  ll^ed  and  Ull.loyed.  the  riyht  would  pass." 
HiiyTeiv.  I'...  in  i^arlow  v.  Kliodes.  1  (J.  &  M.  4:!9,  448  (18:'.:{T  TTus  was  said  with 
reference  to  a  (yi^isj  <'=^^^j)|'^iit-  wjijch  once  had  been  a  real  easement  but  which 


had  hecii  extiug^uished  as  iiULti  by  unity  of  ownership  of  domiuaut:  and  servi^ut 
tenenu'iits. 

"Whcu  the  owner  of  a  piece  of  land  has  a  risht  of  way  over  adjacent  land, 
so  that  lie  may  maintain  at  any  time  an  action  for  an  olstruction.  if  afterwards 
by  inheritan<e  or  purchase  both  pieces  of  land  come  to  one  and  the  same  own- 
er, the  ri.i^ht  fs  necessarily  at  an  end,  the  enjoyment  thenc\>forth  being  the  mere 
exercise  of  a  riuiht  of  property  on  his  own  land.  But  if.  at  a  later  |)eriod.  the 
M^rtir^i  aifinii   t'nll   into  the  ownership  and   pos.scssion  of  different  person.s^ 

'icTTii  the  conyeyajiC£_aL-the  land  to  whicli  tlie  wav  was  formerly  att:;uheJ. 


the  words  are  toum]  •tog.^ther^wini  all  ^\i'|VS|  eft;-,  ust^nJ  or  enioyed  therewijji.' 
the  effect  of  these  \voros  i><  ro  revive  tlie  right!  tliat  formerly  existed,  and  whicii 
has  been  not  extint-Miished.  bnt  only  suspended.  But  since  it  does  not  api)ear 
here  that  at  any  antecedent  time  there  existed  a  right  over  one  of  these  pieces 
of  land,  attached  to  the  other  piece  of  land,  the  effect  of  tb^^sp  wmw]..^  (-jii^imf- 
make  or  revive  a  right  of  wav  tliat  never  before  existed."  Kelly,  C.  K.,  in 
Langlev  v.  Hammond,  L.  R.  3  Ex.  161,  IfiS  (1868).  Until  the  cases  of  Watts 
y.  Kelson,  I..  R.  6  Ch.  App.  166  (1S70),  and  Kay  v.  Oxley,  L.  R.  10  Q.  B.  360 
(187.5).  it  -seems  to  have  been  considered  that  general  words  of  the  sort  referred 
to  would  operate  to  create  an  easement  only  where  riiere  had  once  been  a  true 
easement  wiiicli.  though  extinguished  in  law  by  uiuty  of  ownei-ship,  had  beea 
cTTntinue(Tiis  a  de' tact(7eT>^ehi^ht  in  connection  with  the  use  of  the  (piasi  doiu- 
liiant  teiTenreiit  up  to  the  time  of  its  coiivevance.  (Joddard,  Easements  (Ben- 
nett's  I'^d.)  lU.'i.  In  Kay  y.  Oxley.  Blackburn,  J.,  after  reviewing  some  of  the 
earlier  cases  limiting  the  doctrine  as  above  stated,  states  what  would  seem  to 
be  the  proper  view:  "It  cannot  make  any  difference  in  law,  whetiier  the  right 
pt  way  was  only  de  facto  used  and  enjoyed,  or  whether  it  was  originally  created 
befoi-e  the  unity  of  possession,  and  then  ceased  to  exist  as  a  matter  of  right, 


Ch,  4)  CREATION   OF  EASEMENTS  BY   IMPLICATION  407 

land ;  and  counted  how  he  had  a  tenement  and  the  defendant  another 
tenement  adjoining. 

Rede  [for  the  defendant]  :  "We  say  that  since  the  time  of  memory 
one  A.  was  seised  of  both  tenements,  and  enfeoffed  the  ^ilaintjtif  of  the 
one  and  defendant  of  tiie  other." 

Wood  [tor'ilie  plaintiff]  :  "This  is  not  a  good  plea,  for  the  defend- 
ant seeks  to  defeat  the  custom  by  reason  of  an  unity  of  possession  since 
the  time  of  memory ;  and  that  he  cannot  do  in  this  case,  for  such  a 
custom,  that  one  shall  have  a  gutter  running  in  another  man's  land  is 
a  custom  solemnly  binding  the  land,  and  this  is  not  extinct  by  unity  oi  UjLMf^ 
possession^:  as  if  the  lord  purchase  lands  held  in  gavelkind,  [still]  both 
sons  of  the  lord  shall  inherit,  just  the  same  as  if  the  land  had  remained 
in  the  possession  of  the  tenant,  because  [the  custom  of  J  gavelkind  is 
solemnly  binding  on  the  land." 

TowxsiiEND.  "Jf  a  man  purchase  land  of  which  he  has  the  rent, 
the  rent  is  gone  by  the  unity  of  possession,  because  a  man  cannot  have 
a  rent  from  himself;  but  if  a  man  has  a  tenement  from  which  a  gutter 
runs  into  the  tenement  of  another,  although  he  purchase  the  other  tene- 
ment, the  gutter  remains,  and  [s  as  necessary  as  it  was  before." 

Kede:  "He  who  was  the  owner  of  the  two  tenements  might  have  de- 
stroyed the  gutter;  and  that  if  he  had  done  so,  and  then  made  several 
feoffments  of  the  two  tenements,  the  gutter  could  not  have  revived." 

Davero:  "Jf  that  were  so,  you  might  have  pleaded  such  destruction 
specially,  and  it  would  have  raised  a  good  issue." 

Towxshexd:  "Amend  your  plea,  for  we  will  not  argue  with  ycu 
any  longer/' 

Whereupon  Rede  pleaded  new  matter. 


ROBBIXS  V.  BARXESr 
(Court  of  Coraruon  rieas,  IGlCr'  Ilobart 


lobart,  1.11.)  ^ 


Rohhins  brought  a  quod  permittat  against  Barnes,  prosternere  quan- 
dam  domum,  &c.,  and  counts,  that  he  was  seised  of  an  ancient  house  Z 

and  yard  ;  and  whereas  in  the  east  part  of  the  said  house  there  is,  and  »     J^U 

time  out  of  mind  hath  been,  a  window  of  such  length  and  breadth ;  the      t^jkM^^^\ 
defen^gjjt  hath  erected  a  certain  house  ot   such   length  and  breadth  ^^^'y  ' 
upon  his  own  freehold  so  near  the  said  east  part  of  the  said  house, 
tliat  it  overhangs  the  same  and  stoppeth  his  light,  &c    The  defendant  * 

pleads,  that  one  Richard  Allen  was  seised  of  tlie  plaintift''s  house  and 

so  that  in  the  one  case  it  would  be  created  as  a  right  de  novo,  in  the  other 
Die  rely  revived,  mit  it  uinKes  a  jireat  uirrei-eiK-e.  as  iiiarter  ot  evidence  on  the 
question,  wliether  the  way  was  used  and  enjoyed  as  appurtenant."  It  \v;is  tiiere 
held  tluit  the  ri^bt  to  use  a  way  wliich  had  had  no  existence  ]u-ior  to  any  unitv 
of'oWnersbi]!.  hut  which  tlie  grantee  of  tlie  quasi  dominant  tenement,  as  lessi;e 
thercdr.  Had  heen  using  in  connection  with  his  occupiincy.  [mssed  as  an  ease- 
uieut  under  general  words  of  the  character  under  consideration;. 


y#r 


468  DERIVATIVE  TITLES  (Part  2 

yard,  and  was  also  seised  of  a  certain  house,  standing  in  the  place 
where  the  said  house  of  the  defendant  now  standeth,  which  did  over- 
hang the  house  of  the  now  plaintiff,  in  tarn  amplis  modo  and  forma, 
as  the  said  now  house  of  the  said  defendant  doth.  And  he.  saith.  that 
he  pulled  down  that  house,  because  it  was  ruinous,  and  built  this  house 
in  the  place  of  it._  The  plaintiff  maintains  his  count  and  traverseth, 
that  the  old  house  superpendebat,  &:c.,  in  tarn  amplis  modo  &  forma 
prout,  &c.  And  the  jury  found  for  the  plaintiff.  And  now  it  was  said 
in  arrest  of  judgment,  that  this  was  an  unperfect  issue;  for  there  ought 
no  more  of  the  new  house  to  be  prostrated,  than  did  indeed  overhang 
more  than  the  former  house  did,  which  was  granted  by  the  Court,  if 
it  had  been  wisely  pleaded.  For  it  was  agreed  by  the  Court,  that 
though  one  of  these  houses  had  been  built  overhanging  the  otlier 
wrongfully  before  they  came  both  into  one  hand ;  yet  after  when  thev 
came  both  into  the  hand  of  Allen,  that  wrong  now  was  purged :  so  that 
if  the  houses  came  afterwards  into  several  handsr  yet  neither  partv 
could  complain  nf  a  ^yrnng  before :  SO  that  in  this  case  it  was  plain, 
tliat  the  plaintiff  could  have  no  cause  of  action,  but  for  the  increase 
of  the  overhangmg.  Yet  because  he  had  not  expressed  and  distinctly 
limited  that  in  his  plea,  but  took  issue  generally  as  before,  which  was 

^^^  found  against  him,  the  Court  must  now  give  judgment  according  to  the 
complaint  as  true,  because  they  can  take  no  other  knowledge;  for  the 
j ury  hath  not  found  that  the  former  house  overhanged  so  much,  an d 
not  the  rest;  yet  out  of  their  discretion  thev  gave  the  plaintiff  judgment 
for  tlie  whole,  and  execution  for  damages  and  costs  presently ;  but 
staid  execution,  as  to  the  abating  of  the  house  till  it  might  be  viewed 
what  was  overhanging  de  novo;  because  the  Court  was  informed,  that 
in  truth  it  was  but  a  small  matter.  If  I  have  an  ancient  house  and 
lights,  and  I  purchase  the  next  house  or  ground,  where  yet  no  nuisance 
is  done  to  my  former  house ;  now  it  is  clear,  that  my  privilege,  against 
that  I  have  purchased,  ceaseth ;  for  I  may  use  mine  own  as  I  will. 
Now  then  suppose  I  would  lease  my  former  house,  I  may  build  upon 
the  latter,  or  if  I  lease  my  latter,  he  may  build  against  me,  as  it  may 
seem. 

But  note,  there  is  a  great  difference  between  interests  and  profits,  as 

y^  rents,  commons,  &c.,  and  bare  easements,  such  as  are  lights,  air,  gut- 

yfw^        ters,  stillicidia  and  the  like;  for  though  while  thev  are  in  one  hanjl 

f\/^  a/  they  may  be  stopped,  or  foredone.  because  a  man  cannot  be  said  tn 
""^  wrong  himself,  yet  if  they  be  divided.  t;hinjy«;  gi  that  nature  (still  jn 
being)  do  revive,  because  they  are  of  no  less  use  of  themselves  in-jQne 
hand  tbaa-kudiyefs,  being  equally  (rebus  stantibus  in  •the  same  use  and 
occupation)  necessary  for  the  several  houses  to  which  they  belong,  ^t 
clearly,  if  even  such  things  be  foredone  or  altered,  while  they  are  m 
one  hand^and  s^  being  the  Houses  be  again  divided,  tliey  cannot  be 
restoreTByTaw,  but  must  be  taken  as  they  were  at  the  time  of  the  con- 
veyance. 


Ch.  4)  CREATION   OF  EASEMENTS  BY  IMPLICATION  469 

PALMER  V.  FLETCHER. 

(Court  of  King's  Bench,  1663.     1  Lev.  122.) 

Cas,e  was  brought  for  stopping  of  his  lights.  The  case  was,  a  man 
erected  a  house  on  his  owiajands,  and  after  sells  the  house  to  one,  and 
thelands  adjoining  to  another,  who  by  putting  piles  of  timber  on  the 
land,  obstructed  the  lights  of  the  house;  and  it  was  resolved,  that  al- 
though it  be  a  new  messuage,  yet  no  person  who  claims  the  land  by^  .  » 
purchase  under  the  builder,  can  obstruct  the  lights  any  more  than  the~  ixV-C-*'^**'^ 
builder  himself  could,  who  cannot  derogate  from  his  own  grant,  by 
TwYSDEN  and  Wyndham,  Justices,  Hyde  being  absent,  and  ivEL- 
YNGE  doubting.  Forthe  lights  are  a  necessary  and  essential  part  of  the 
house.  And  Kelynge  said.  Suppose  the  land  had  been  sold  first,  and 
the  house  after,  the  vendee  of  the  land  might  stop  tlie  lights  ;  Twysdex 
to  the  contrary  said,  Whether  the  land  be  sold  first  or  afterward,  the 
vendee  of  the  land  cannot  stop  the  lights  of  the  house  in  the  hands  of 
the  vendor  or  his  assignees ;  and  cited  a  case  to  be  so  adjudged ;  bjit_all 
agreed,  that  a  stranger  having  lands  adjoining  to  a  messuage  newly 
erected,  may  stop  the  lights,  for  the  building  of  any  man  on  his  lands, 
cannot  liinder  his  neighbour  from  doing  what  he  will  with  his  own 
lands ;  otherwise  if  the  messuage  be  ancient,  so  that  he  has  gained  a 
right  in  the  lights  by  prescription.  And  afterwards  in  Mich.  16  Car. 
II,  B.  R.  a  like  judgment  was  given  between  the  same  parties,  for 
erecting  a  building  on  another  part  of  the  lands  purchased,  whereby 
the  lights  of  another  new  messuage  were  obstructed. 


PINNINGTON  V.  GALLAND. 

(Court  of  Exchequer,  1853.    9  Exch.  1.) 

This  was  an  action  on  the  case  for  the  disturbance  of  a  right  of  way, 
which  came  on  to  be  tried  before  Coleridge,  J.,  at  Nottingham  Sum- 
mer Assizes,  1852,  when  a  verdict  was  found  for  the  plaintiff,  dam- 
ages 40s.,  subject  to  the  following  special  case :  ^     *     *     * 

Martin,  B.     This  is  a  special  case,  which  was  argued  before  us 
during  the  last  Term ;   and  the  question  is,  whether  the  plaintiff,  as  oc-  /'"^Yi 
cupier  of  two  closes  called  the  Rye  Holme  rlo^^es^  iq  entitled  to  a  ri^ht/  ^     ) 
of  way  over  certain  lands  of  the  defendant.  V  *^-^ 

The  material  circumstances  are  these:    In  the  year  1839  a  property 
consisting  of  five  closes  belonged  to  a  Mr.  Dickinson.     Two  of  them 
were  the  Rye  Holme  closes,  and  they  were^  separated  by  two  ^fjthe 
others  from  the  only  available  highway,  the  Town-street  of  Suttpn- 
upon-Trent.     From  the  year  1823  the  road  over  which  the  plaintiff   /lA^J^f  *^  dJTk 


2  A  portion  of  the  statement  of  facts  is  omitted. 


C^^J^ 


jwJ^^   ^    and  ov 


470  DERIVATIVE  TITLES  (Part  2 

now  claims  the  right  of  way  was  that  which  was  used  bv  Mr.  Dickin- 
son's tenant  for  the  occupation  of  the  Rve  Holme  closes.  From  a 
plan,  which  forms  part  of  the  case,  the  road  apj^ears  to  be  the  short- 
est and  most  direct  access  from  the  highway  to  the  closes ;  and  it 
having  been  used  for  so  many  years  by  the  tenant  who  occupied  the 
entire  property,  we  tliink  we  may  safely  conclude  that  it  wa's.  and  is, 
the  most  convenient  road. 

In  1839  the  property  was  sold  by  IMr.  Dickinson  in  three  lots.     A 

I\Ir_.  Moss  purchased  the  Rve  Holme  closes,  a  Mr.  Newboult  purchased 

one  of  the  other  closes,  and  a  Mr.  Dearie  purchased  the  remainder 

of  the  property,  which  includes  that  now  belonging  to  the  defendant, 

and  over  which  the  way  in  question  goes.     The  deeds  of  conveyance 

to  the  three  purchasers,  although  bearing  different  dates,  were  all  ex- 

Jl-  ecuted  on  the  same  day,  the  8th  of  April.  1840.  and  it  cannot  now  be 

»  .    ^  ^^    ascertained  in  what  order  of  priority  they  were  executed.     No  special 

-^jXA*^^--*  .'^grant  or  reservation  of  any  particular  way  is  contained  in  any  of  them  ; 

1^"^    ^^f^iii^  but  in  the  conveyance  to  Mr.  Moss,  whose  tenant  the  plaintiff  is,  there 

^  /l**^  is  comprised  the  usual  words,  "tog;ether  with  (inter  alia)  all   ways, 

Q        {y)ads,  paths,  passages,  rights,  easements,  advantages,  and  appurtenanc- 

qI/^^^*''^^         i  es  whatsoever  to  the  said  closes  belonging  or  in  any  way  appertain- 

I  ^  i  ing7'     Mr.  Dearie  executed  the  deed  of  conveyance  to  him. 

For  several  years  after  the  execution  of  the  conveyances  the  occupier 

of  the  Rye  Holme  closes  condnued  tn  w^^  \\\e  road  in  question ;    but 

in  1843  the  deifudant.  who  had  purchased  fronLiMr    Dearie  part  of 

tlie  land  conveyed  tlnus  by  Mr.  Dickinson^  ^nd  nver  whirh   the  wn.y 

in  question  goes,  disputed  the  plaintiff's  right  to  use  it._   Attempts 

were  made  for  arrangement,  whTcH^taiTed,  and  we  are  now  required 

/}  to  decide  the  point ;    and  vve  are  of  opinion  that  the  plaintiff,  as_gc- 

IL-'^^'^        cupier  of  the  Rye  Holme  closes,  is  entitled  to  the  right  of  way  claimed. 

'  •/  -A^^^         -^t  *^  impossible  to  ascertain  the  priority  of  the  execution  of  the  two 

^UtI  conveyajices  (that  to  the  third  purchaser  may  be  put  out  of  considera- 

I  +  tion),  and  the  plaintiff  having  to  establish  his  right,  is  bound  to  show 

J^-  that,  whichever  was  tlie  first  executed,  he  nevertheless  is  entitled  to 

I  the  right  of  way. 

Fjrst,  assume  that  the  conveyance  to  Mr.  Moss  was  executed  be- 
forethatjo  Mr.  Dearie.  In  this  case  there  would  clearly  be  the  right 
of  way.  It  is  the  very  case  put  by  Mr.  Serjt.  Williams  in  his  note 
to  Pom  fret  v,  Ricroft,  1  Wms.  Saund.  Z2l,  viz.,  "where  a  man,  hav- 
ing  a  close  surrounded  with  his  land,  grants  the  close  to  another  in 
feg,  tor  iite,  "or  for  years,  the  grantee  shall  have  a  way  over  thp  gran- 
tee's land,  as  mcident  to  thegrant,  for  without  it  he  cannot  have-^ny 
benefit  fromthe  grant,"  and  "the  way  would  be  the  most  direct  and 
convenient,  which  we  think  we  may  properly  assume  the  one  in  ques- 
tion in  the  present  case  to  be.  This  is  founded  upon  the  legal  maxim, 
"Ouando  aliquis  aliquid  concedit,  concedere  videtur  et  id  sine  quo  res 
concessa  uti  non  potest,"  which,  though  it  be  clearly  bad  Latin,  is,  we 
think,  good  law. 


P^     fa 


JJ/VOU^ 


Ch.  4)  CREATION   OP   EASEMENTS   BY   IMPLICATION  471 

Secondly,  assume  that  the  conveyance  to  Mr.  Dearie  was  executed 
the  first.  In  this  case  the  Rye  Holme  closes  were  for  a  short  period 
of  time  the  property  of  Mr,  Dickinson,  after  the  property  in  the  land 
conveyed  to  Mr.  Dearie  had  passed  out  of  him.  There  is  no  doubt, 
apparently,  a  greater  diflkulty  in  holding  the  right  of  way  to  exist  in 
this  case  than  in  the  other ;  but,  according  to  the  same  very  great  au- 
thority, the  law  is  the  same,  for  the  note  proceeds  thus :  "So  it  is 
when  he  grants  the  land  and  reserves  the  close  to  himself ;"  aiTcThe 
cites  several  authorities  which  luliy  bear  him  out:  Clarke  v.  Cogge, 
Cro.  Jac.  170;  Staple  v.  Heydon,  6  Mod.  1 ;  Chichester  v.  Lethbridge, 
VVilles,  72,  note.  It  no  doubt  seems  extraordinary  that  a  man  should 
have  a  right  which  certainly  derogates  from  his  own  grant ;  but  the 
law  is  distinctly  laid  down  to  be  so,  and  probably  for  the  reason  given 
in  Dutton  v.  Taylor,  2  Lutw.  148,  that  it  was  for  the  public  good,  as 
otherwise  the  close  surrounded  would  not  be  capable  of  cultivation. 

According  to  this  law,  therefore,  the  right  of  way  would  a^'''nie  to 
Mr.  Dickinson  upon  the  execution  of  the  conveyance  to  ^Ir.  ^^pal•le■ 
and  it  would  clearly  pass  to  Mr.  Moss  under  his  conveyance,  for  }p 
would  be  a  way  appurtenant  to  the  Rye  Holme  rinses,  and  would  pass 
under  the  woras^aiTways  to  the  closes  belonging  or  appertaining. ' ' 
and,  indeed,  probably  without  them.  The  plaintiff  has  vested  in  him, 
as  Mr.  Moss's  tenant,  all  his  rights  of  way;  and,  for  the  above  rea- 
son, we  think  that  he  is  entitled  to  the  judgment  of  the  Court. 

There  is  a  statement  in  the  case  respecting  another  road  described 
in  the  plan  as  from  C  to  D,  which  tlie  defendant  contends  was  the 
plaintiff's  proper  way.  But  it  is  perfectly  clear,  that,  whatever  may 
be  the  rights  of  the  occupiers  or  owners  of  the  two  closes  further  to 
the  east,  called  Maples  and  Catlifife  closes,  and  which  were  sold  and 
conveyed  by  Mr.  Dickinson  before  the  sales  to  Mr.  Moss  and  Mr. 
Dearie,  Mr.  Moss  or  the  plaintiff  his  tenant,  upon  the  statement  in 
the  present  case,  has  no  right  to  the  useof  it ;  and,  except  by  one 
nr  ntlipf  nf  ihf  roads,  tlie  case  states  that  the  plaintiff  could  not  get 
to  the  Rye  Holme  closes  without  being  a  trespasser  upon  land  otlier 
than  ^Ir.  Dickinson  s, 
~  Judgment  for  tlie  plaintiff.* 

3  See  D.ivies  v.  Sear,  L.  R.  7  Eq.  427  (ISfinK  where  at  the  time  of  convey- 
ance it  was  not  necessary  to  use  the  {iranted  land  as  means  of  acci'ss  to  re- 
tained land,  Imt  it  wns  apparent  from  circuinstauces  and  a  I  iiildiii<;  i»laii.  known 
t?  tllP  y^'^'^'tpp,  that  certain  buildiug  ouerations.  wlieu  com^neteu.  woaia  cut  otf 
all  yttier  nmnn.s  of  access. 


472  DERIVATIVE  TITLES  (Part  2 

PYER  V.  CARTER. 

(Court  of  Exchequer,  1857.     1  Hurl.  &  N.  910.) 

The  declaration  stated,  that  before  and  at  the  time  of  committing 
the  grievances,  &c.,  the  jTJaintiff  was  lawfully  possessed  of  a  messuage 
and  premises  with  the  appurtenances,  situate  in  St.  Anne  Street,  Liver- 
pool,  and  by  reason  thereof  was  entitled  to  a  drain  or  sewer,  and. pas- 
sage for  water,  leading  from  the  said  messuage  and  premises,  in, 
through,  and  under  certain  adjoining  land  at  Liverpool  aforesaid, 
through  which  the  rain  and  water  from  the  plaintiff's  said  messuage 
and  premises  of  right  had  flowed,  and  still  of  right  o^^r^t  to  flow,  away 
from  the  plaintiff's  said  messuage  and  premises :  Yet  the  r|pfpnr);^nt 
wrongfully  stopped  up  the  said  drain  and  sewer,  whereby  divers  large 
quantities  of  rain  and  water  which  of  right  ought  to  have  flowed,  and 
otherwise  would  have  flowed,  through  the  same  drain,  sewer,  and  pas- 
sage for  water,  were  prevented  from  flowing  .from  the  plaintiff's  said 
messuage  and  premises^  and  flooded,  soaked  into,  and  injured_Uie 
s^ame^^x^ 

Pleas.  First,  riotJ[iii|ty.  Secondly,  that  the  plaintiff  was  noj^^mti;;, 
tled_to_thg^said^ain,  sewer,  and  passage  for  water;  nor  did  the  rain 
and  water  from  the  plamtiff's  said  messuage  and  premises  of  right 
flow,  nor  ought  to  flow,  away  from  the  plaintiff's  said  messuage  and 
premises  through  the  said  drain,  sewer,  and  passage  for  water  as  al- 
leged.    Issues  thereon. 

At  the  trial,  before  Bramwell,  B.,  at  the  last  Lancashire  Summer  As- 
sizes, it  appeared  that  the  plaintiff  and  defendant  were  owners  of  ad- 
joining  houses  situated  in  St.  Anne  Street,  Liverpool.  These  hollses 
,had  been  formerly  que  house,  and  had  belonged  to  a  person  of  the 
jname  of  Williams,  who  converted  them  into  two  houses.  In  July, 
1853,  Williams  conveyed  the  defendant's  house  to  him  in  fee.  This 
conveyance  contained  r^  reservation  of  any  easement.  In  September, 
1853,  Williams  conveyed  the  plaintiff's  house  to  him  in  fee.  At  the 
time  of  these  conveyances  a  jlrain  or  sewer  ran  under  the  plaintiff's 
ll^use  and  thence  under  the  defendant's  house  and  discharged  itself 
into  the  common  sewer  in  St.  Anne  btreet"  Water  from  tlie  eaves  of 
the  deiendant's  house  fell  on  the  plaintiff's  house,  and  from  thence 
flowed  down  a  spout  into  the  drain  on  the  plaintiff's  premises,  and  so 
into  the  common  sewer.  The  defendant  blocked  up  the  drain  where 
it  entered  his  house,  and  in  consequence,  whenever  it  rained,  the  plain- 
tiff's house  was  flooded.  The  defendant  stated  that  he  was  not  aware 
of  the  drain  at  the  time  of  the  conveyance  to  him.  It  was  proved  that 
the  plaintiff  might  construct  a_drain  directly  from  his  own  house  into 
the  common  sewer  at  a  cost  of  about  £6. 

It  was  submitted  on  the  part  of  the  defendant,  that  the  plaintiff  had 
no  right  to  the  use  of  the  drain  under  the  defendant's  house.     The 


T^*^- 


Ch.4) 


CREATION   OF   EASEMENTS  BY  IMPLICATION 


473 


learned  Judge  directed  a  verdict  for  the  plaintiff,  reserving  leave  to 
the  defendant  to  move  to  enter  a  verdict  for  him. 

Watson,  B.  This  was  an  action  for  stopping  a  drain  that  ran  un- 
der both  the  plaintiff's  and  defendant's  houses,  taking  the  water  from 
both.  The  cause  was  tried  at  Liverpool,  before  Baron  Bramwell, 
when  a  verdict  was  entered  for  the  plaintiff,  and  a  motion  was  made 
to  enter  a  verdict  for  defendant  in  pursuance  of  leave  reserved  at 
the  trial. 

The  plaintiff's  and  defendant's  houses  adjoined  each  other.  They 
had  formerly  been  one  house,  and  were  converted  into  two  houses  by 
the  owner  of  the  whole  property.  Subsequently  the  defendant's  house 
was  conveyed  to  him,  and  after  that  conveyance  the  plaintiff  took  a 
conveyance  of  his  house.  At_the  time  of  the  respective  conveyances 
th^  drain  ran  under  the  plamtiff's  house  and  then  under  the  defend- 
ant's house,  and_discharged  itself  into  the  common  sewer.  Water 
from  the  eaves  ofthe  defendant's  house  fell  on  the  plaintiff's  house, 
and  then  ran  into  the  drain  on  plaintiff's  premises,  and  thence  through 
the  drain  into  the  common  sewer.  The  plaintiff's  house  was  drained 
through  this  drain.  It  was  proved  that  bv  the  expenditure  of  £6., 
the  plaintiff  might  stop  the  drain  and  drain  directly  from  his  own  land 
into  the  common  sewer.  It  was  not  proved  that  the  defendant.  _at 
the  time  of  his  purchase,  knew  of  the  position  of  the  drains. 

Under  these  circumstances  we  are  of  opinion,  upon  reason  and 
upon  authority,  that  the  plaintiff  is  entitled  to  our  judgment.  We  think 
that  the  owners  of  the  plaintiff's  house  are,  by  implied  grant,  entitled 
to  have  the  use  of  this  drain  for  the  purpose  of  conveying  the  water 
from  his  house,  as  it  was  used  at  the  time  of  the  defendant's  purchase. 
It  seems  in  accordance  with  reason,  that  where  the  owner  of  two  or 
more  adjoining  houses  sells  and  conveys  one  of  the  houses  to  a  pur- 
chaser, tnat  such  house  in  his  hands  should  be  entitled  to  the  benefit 
oi  all  the  drains  from  his  house,  and  subject  to  all  the  drains  then 
necessarily  used  for  the  enjoyment  of  the  adjoining  house,  and  that 

^iSteHL-^tiK^^^"'£^^^^MiQA-.-^-§>'^^"n'  ^"^smuch  as  he  purchases  the 
housesuchasit  is.  ifthatwere  not  so!  the  inconveniences  and  nui- 
sances  in  towns  would  be  very  great.  Where  the  owner  of  several  ad- 
joining houses  conveyed  them  separately,  it  would  enable  the  vendee 
of  any  one  house  to  stop  up  the  system  of  drainage  made  for  the  bene- 
fit and  necessary  occupation  of  the  whole.  The  authorities  are  strong 
on  this  subject.  In  Nicholas  v.  Chamberlain,  Cro.  Jac.  121,  it  was 
held  by  all  the  Court  that,  "ij^one  erects  a  house  and  builds  a  con- 
duit thereto  in  another  part  of  his  land,  and  conveys  water  by  pipes  to 
his  house,  and  afterwards  sells  the  house  with  the  appurtenances,  ex- 
cepting the  land,  or  sells  the  land  to  another,  reserving  to  himself  the 
house,  the  conduit  and  pipes  pass  with  the  house,  because  it  is  neces- 
sary and  quasi  appendant  thereto^  and  he  shall  have  liberty  by  law  to 
dig  in  the  land  for  amending  the  pipes  or  making  them  new  as  the 
case  requires^    {So  ii  a  lessee  for  years  of  a  house  and  land  erect  a  con- 


k 


474  DERIVATIVE  TITLES  (Part  li 

duit  upon  the  land,  and  after  the  term  the  lessor  occupies  them  togeth- 
er for  a  time,  and  afterwards  sells  the  house  with  the  appurtenances, 
to  one,  and  the  land  to  another,  the  vendee  shall  have  the  conduit  and 
the  pipes,  and  liberty  to  amend  them."  Shury  v.  Pigott,  Popham,  166, 
s.  c.  3  liulst.  339,  and  the  case  of  Coppy  v.  I.  de  B.,  11  Hen.  VII,  25, 
pi.  6,  support  this  view  of  the  case,  that  where  a  gutter  exists  at  the 
time  of  the  unity  of  seisin  of  adjoinincr  houses  it  remains  when  IJiey 
are  aliened  by  separate  conveyances,  as  an  easement  of  nejz^ssity. 

It  was  contended,  on  the  part  of  the  defendant,  that  this  pipe  was 
not  of  necessity,  as  the  plaintiff  might  have  obtained  another  outlet  for 
the  drainage  of  his  house  at  the  expense  of  £6.  We  think  that  the 
amount  to  be  expended  in  the  alteration  of  the  drainage,  or  in  the  con- 
structing a  new  system  of  drainage,  is  not  to  be  taken  into  considera- 
•^  tjon,  for  the  meaning  of  the  word  "necessity"  in  the  cases  above  cited 

-•  and  in  Pinnington  v.  Galland,  9  Exch.  1,  is  to  be  understood  the  neces- 
sity at  the  time  of  the  conveyance ,  and  as  matters  then  stood  with  out 
alteration :  and  whether  or  not  at  the  time  of  the  conveyance  there 
was  any  other  outlet  for  the  drainage  water,  and  matters  as  they  then 
stood,  .must  be  looked  at  for  the  necessity  of  the  drainage. 

It  was  urged  that  there  could  be  no  implied  agreement  unless  the 
easement  was  apparent  and  continuous.  The  defendant  stated  he  was 
not  aware  of  this  drain  at  the  time  of  the  conveyance  to  himl  5ut  it 
is  clear  that  he  must  have  known  or  ougTmo  have  known  that  some 
drainage  then  existed,  and  if  he  had  incjuired  he  would  have  known 
of  this  drain;  therefore  it  cannot  be  said  that  such  a  drain  could  not 
have  been  supposed  to  have  existed ;  and  we  agree  with  the  observa- 
tion of  Mr.  Gale  (Gale  on  Easements,  p.  bZ,  2d  Ed.)  that  by  "apparent 
signs"  must  be  understood  not  only  those  which  must  necessarily  be 
seen,  but  those  which  may  be  seen  or  known  on  a  careful  inspection  by 
a  person  ordinarily  conversant  with  the  subject. 

We  think  that  it  was  the  defendant's  own  fault  that  he  did  not  as- 
certain what  easements  the  owner  of  the  adjoining  house  exercised 
at  the  time  of  his  purchase;  and  therefore  we  think  the  rule  must 
be  discharged. 

Rule  discharged. 


POLDEN  V.  BASTARD. 

(Court  of  Queen's  Bench,  1SG3.    4  Best  &  S.  238.) 

The  declaration  stated  that  the  defendant  broke  and  entered  the 
close  of  the  plaintiff,  situate  at  &c.,  and  tnere  broke_Qpen  a  door  nnd 
cut  dowri  and  desFroyed  a  w^ooden  fence,  and  took  and  carried  away 
large  quantities  of  water  belongmg  to  the  plaintiff. 

Pirst  plea,  except  as  to  cutting  down  and  destroying  the  wooden 
fence,  that  before  the  committing  of  the  acts  complained  of,  and  before 
the  plaintiff  had  any  estate  or  interest  of  or  in  the  close  in  which  &c.. 


Ch.  4) 


CREATION  OF  EASEMENTS  BY   IMPLICATION 


475 


Rachel  Polden  Bonnel  was  seised  in  fee,  as  well  of  and  in  the  close  in 
which  &c.,  and  of  a  pump  and  well  therein,  as  of  and  in  a  certain  dwell- 
ing house,  outhouse  and  garden,  and,  being  so  seised,  duly  made  and 
published  her  last  will  and  testament  Sec. ;  and  by  the  said  will  devised 
to  Clementina  Polden,  and  her  heirs  and  assigns  for  ever,  the  house, 
outhouse  and  garden,  together  with  a  way  on  foot  from  the  house,  out- 
house and  land  unto,  into,  through,  and  over  the  close  of  the  plainti,ff 
to  the  pump  and  well,  for  the  purpose  of  the  said  Clementina  Pol- 
den. her  heirs  and  assigns,  having,  taking  and  fetching-^  7\x\i\  fnr  her 
and  them  to  have,  take,  and  fetch,  water  from  the  pump  and  well,  and 
so  back  agam  frcm  the  pump  and  well  in,  through,  over  and  along  the 
close  of  the  plaintiff  unto  and  into  the  house,  outhouse  and  garden 
of  Rachel  Polden  Bonnel,  at  all  times  of  the  year  &c. ;  and  RacliSl 
Polden  Bonnel  being  so  seised  afterwards  died  without  revoking  her 
will ;  and  thereupon  Clementina  Polden  became  seised  in  fee  of  the 
house,  outhouse  and  garden,  with  the  appurtenances,  together  \\\\\\  the 
right  and  easement  by  the  will  given  and  devised  to  her ;  and  Clem- 
entina  I'olden,  being  so  seised,  by  deed,  duly  bargained,  sold,  granted  y^^^^  Jo-OO-- 
and  assigned  to  the  defendant  the  house,  outhouse  and  garden,  with  >q     ^  uril 

theaiopm]tenances^  together  with  the  right  antTeasement,  and  she  ceased  \J''''^'^'^*^> 
to  have  any  estate  or  interest  therein,  and  the  defendant  became  and  -Y^^g^  Aasv^^J. 
was  seised  in  fee  of  and  in  the  house,  outhouse  and  garden,  with  the 
appurtenances,  and  the  right  and  easement,  and  at  the  times  of  the 
cojnmitting  the  acts  complained  of  continued  so  seised,  and  one  James 
Dennis  was  in  occupation  thereot,  as  tenant  thereof,  together  wnth  the 
right  and  easement  to  the  defendant,  the  reversion  of  the  same  be- 
longing to  the  defendant;  and  the  trespasses  complained  of,  to  which 
this  plea  is  pleaded,  were  a  use  and  exercise  by  the  defendant  of  the  Ljx-»*yC^  >iA>t 
way^right,  and  easement,  the  said  water  being  water  in  the  pump  and  .         ^       /%  ,^ 
well.     The  plea  proceeded  to  justify  the  breaking  of  the  door  in  the'*'^  *^'*^' 
use  and  exercise  of  the  right  and  easement  of  having,  taking,  and  CjJL   *^  I^C.A-< 
fetching  water  from  the  pump  and  well,  and  for  the  protection  of  the 
defendant's  reversionary  right. 

There  were  other  pleas  iustifyinp-  nn  thp  p-munds  respective1y_pf 
ajrescnptive  righ t  of  way,  of  a  right  of  way  for  twenty  years,  a n d 
of  a  rigliT  of  way  tor  ^orty  years,  on  foot  through  the  close  of  the 
plaintiri:'~to  the  pump  and  well,  for  the  purpose  of  having,  tnkinfy  and 
1  etching  ^vateF  theref  romT  Also  pleas  justifying  the  trespass  to  the 
fence,  because  it  obstructed  the  defendant's  right  to  light  and  air. 


Issues  were  joinedon  all  the  pleas. 

On  the  trial,  before  Williams,  J.,  at  the  Dorsetshire  Summer  Assizes 
in  1862,  it  appeared  that,  on  the  26th  May,  1834,  Rachel  Polden  Bon- 
nel, being  the  owner  in  fee  of  three  cottages,  made  her  will,  by  which 
she  devised  as  follows:    "I  give  to  my.  nephew  R.  B.  Polden.  all  that  III       /} 
my  freehold  cottage  and  garden  at  Charlton  Marshall,  now  occupied  by  j'^M.  ^ct/W<^ 
W.  Wills,  to  him  and  his  heirs  and  assigns  for  ever.     To  my  nephew  I 
W.  Polden"  (the  plamtiff)  "I  give  the  house  I  now  live  in,  with  the  out-  | 


476  DERIVATIVE  TITLES  (Part  2 

house  and  garden  and  orchard,  in  my  own  occupation,  to  him  and  his 
heirs  and  assigns  forever.  Also  the  sum  of  ilO.  I  give  to  mv  niece 
Clementina  Polden  the  house  and  outhouse  and  g-arden  as  now  in  the 
occupation  of  Thomas  Answood,.  junior,  to  her  and  her  heirs  and  as- 
signs for~ever.^  The  house  in  the  occupation  of  the  devisor  had  a 
pump  belonging  to  it,  which  stood  under  a  shed  at  the  back  of  an  out- 
house belonging  to  the  house  occupied  by  Answood ;  there  was  no 
fence  between  his  house  and  the  land  on  which  the  shed  stood ;_  he  oc- 
cj^ied  thatliouse  for  two  years  as  tenant  from  vear  to  year  of  the 
devisor  by  apa_rol  letting,  and  was  accustomed  with  her  knowledge  to 
go  to  the  pump  and  draw  water  from  it  for  his  use ;  there  was  no 
other  pump  or  well  on  his  premises,  but  there  was  a  river  within  150 
yards  and  a  road  to  it.  The  devisor  died  in  1848.  and  in  Septemloer. 
1849,  Clementina  Polden^  who  survived  her,  conveyed  the  cottage  de- 
visedJtoJjgi^ojthe^jdeffiniiaiiXit^^ 

The  jury  found  a  verdict  for  the  defendant  on  the  pleas  as  to  the 
rig[ht_Jfl..Iight  andair^_and  the  learned  Judge  directed  a  verdict  to  be 
entered  forthe  defendant  on  the  pleas  as  to  the  enjoyment  of  the 
,pump  and~well,  reserving  leave  to  move  to  enter  a  verdict  for  the 
plaintiff  for  40s  on  those  pleas. 
n    A    In  the  following  Michaelmas  Term,  Collier  obtained  a  rule  accord- 

jj^  V-*"^^  (  ingly.  on  the  ground  that  the  right  to  the  use  ot  the  pump  did  not 
g-'^XJt,     I  pass  under  the  will  of  Rachel  Polden  Bonnel  to  Clementina  Polden 

'V^f^^'*^        (  under  whom  the  defendant  claimed. 

V^WiGHTMAN,  J.  I  am  of  opinion  that  this  rule  should  be  made  ab- 
solute. Mj\Kingdon  has  been  unable  to  furnish  us  with  any  case 
which  goes  to  the  extent  ot  saying  that  sucn  words  as  are  used  in^his 
devise  create  an  easement.  Pyer  v.  Carter,  1  PI.  &  N.  916,  is  open  to 
the  distinction  that  the  easement  there  was  continuous.  If  the  will 
had  contained  words  shewing  that  the  cottage  was  intended  to  be  de- 
vised "as  usually  enjoyed  before,"  it  might  have  been  contended  that 
the  right  to  use  the  pump,  which  had  been  enjoyed  by  the  tenant  of 
the  cottage  for  two  years,  would  pass,  though  not  properly  an  ease- 
ment. But  there  are  no  such  words ;  the  devise  is  simply  of  ^the 
house  and  outhouse  and  garden  as  now  in  the  occupation  of  Thomas 
Answbo(|/^  The  circumstances  ot  the  present  case  stiew  that  the  pump 
was  not  used byliim  in  the^xercise  of  a  right  to  use  it  as  an  easement. 
Crompton,  J.  I  also  think  tliat  my  brother  Williams  was  right  in 
holding  that  an  easement  was  r^ot  ^created  by  the  terms  of  this  de- 
vise.     The  distinction  between  easements  which  are  in  their  nature 


continuous  and  apparent,  such  as  drains,  &c.,  and  other  easements, 

such  as  ordinary  rights  of  way,  and  that  in  question  here,  is  well  point- 

^ji^itA/f  ed  out  in  Gale  on  Easements  (3d  Ed.,  by  Willes)  pp.  76,  77 ;  the  former 

^^^  tjL/J^ *'  I^ass  with  the  devise  or  conveyance  of  a  house  as  appurtenant  thereto, 

jt>4  "^^  and  will  pass  without  general  jwords :    but  that   does  not  apply  to 

-TJi^  ,  things  not  continuous  in  their  nature, — in  order  to  pass  them  there 

must  be  the  creation  de  novo  of  a  new  easement.     I  adhere  to  what 


Ch.4) 


CREATION   OF  EASEMENTS. BY   IMPLICATION 


477 


I  am  reported  to  have  said  in  Worthington  v.  Gimson,  29  L.  J.  O.  B. 

116,  120,  6  Jur.  N.  S.  1053,  1054,  which  was  approved  by  this  Court 

in,  Pearson  v.  Spencer,  1  B.  &  S.  571,  583.    This  is  not  a  continuous 

easement,  nor  an  easement  belonging  to  the  cotta^j^e  but  a  mere  en- 

j Q^men^  fnr  twn  years  bv  the  tenant  of  the  privilege  of  using  the 

Pjinip.     If  this  had  been  an  old  easement  attached  to  the  cottage  it 

would  pass  by  the  words  "appertaining  or  belonging;"    but  to  create 

a  new  easement  which  did  not  exist  before  the  will  must  have  devised 

the  cottage  "with  the  pump  therewith  enjoyed."     It  is  said  that  the  . 

words  "as  now  in  the  occupation  of  Thomas  Answood"  are  equivalent 

to  that ;  but  I  am  of  o^pitnon  that  they  are  not. 

Blackburn,  J.    I  am  of  the  same  opinion.    So  long  as  the  defend- 
ant's cottage  and  the  plaintiff'.g;  p^arden  with  the  pump  in  it  belonged 
to  the  devisor,  who  was  seised  in  fee,  there  could  be  no  easement.    • 
When  the  two  cottages  were  severed,  whether  by  will  or  grant  of  the 
owner,  an  easement  might  exist,  but. there  must  be  worH;^  in  the  will    |V0 X^^"^'^'^ 
or  grant  to  create  it.    If  this  had  been  a  continuous  easement,  as  a  flow  ^/it^^iJi,  Ju-U 
of  water  to  the  cottage,  or  a  drain  carrying  water  from  it,  the  prin-  '    ^ 

ciple  which  has  been  called  the  principle  of  disposition  of  the  owner  -^^^-'^''^^  !-•*«%« 
of  two  tenements  would  apply.     But  this  right  of  wav  to  go  to  and  Vxrw  \y4'  JSUU 
return  fromja  pump  is  no  such  continuous  easement  as  wDuld  pass  ujpon   ij-.     u.  m^^"^ 
that  principle ;    and  therefore  it  is  necessary  to  shew  words  sufficient       ,  ^ 

to  express  an  intention  by  the  devisor  to  create  this  easement  de  novo,  /*'<^'^*-^|'''M  > 
and  annex  it  to  the  cottage  devised.    There  are  no  such  words :   there  JtyjbiAj&^  Aj^ 
oi^ly  is  a  devise  of  the  cottage  itself,  "as  now  in  the  occupation  of  .  „.«.         >fc^ 
Thomas  Answood;"   and  he  had  enjoyed  merely  a  license  to  go  to  the 
pump.  ^  ^fM^^i^c^^^^^t^J^-^  '^*-«^ 

Rule  absolute.* 


4  In  Pearson  v.  Spencer,  3  B.  &  S.  761  (1863)  an  owner  of  a  farm  rliviflprl  jf: 
by  tjifs  wfl]  ipto  "two  portions,  aevising  them  to  A.  and  Jj.  respectively.  ^The 
portion  of  B.  was  landlocked.  The  devisor,  during  his  li'^e  hnc,!  used  ^  wav  in 
a  certain  aireetion  over  tne  property  devised  to  A.  in  order  to  reach  tlie  por-. 
tlon  devised  to  B.  It  was  claimed  hy  B.  that  he  acQuired,;;v  Irnnlicntion  an  ease- 
ment of  a  way  over  the  land  of  A.  in  the  devisor's  accustomed  line  of  travel.  TRie 
court  held  that,  such  an  ea.sement  had  heen  acquired,  not  as  a  wav  of  neces- 
sity. :^p^  this  was  a  particular  way,  but  on  the  basis  of  the  general  impli£ation. 
Ei-le,  C.  J.,  said:  "It  falls  under  that  class  of  implied  grants'~where  there  is 
no  necessity  for  the  right  claimed,  but  where  the  tenement  is  so  constructed 
as  that  parts  of  it  involve  a  necessary  dependence,  in  order  to  its  enjoyment 
in  the  state  it  is 'in  when  devised,  upon  the  adjoining  tenement.  There  are 
rights  VFhiclT  are' implied,  and  we  think  that  the  farm  devised  to  the  party 
under  whom  the  defendant  claims  could  not  be  enjo^red  without  dependence 
on  the  plaintiff's  land  of  a  right  of  way  over  it  In  the  customary  manfler." 

"Hi  P'Om  V.-MyLl-op(jhraU'TraTrt\'ay  (Jompanles,  ii  <J.  b.  D.12  (1886),  a  house 
was  divided  into  a  front  and  back  block ;  and  A.  was  lessee  of  three  rooms  on 
the  first  floor  in  the  back  block.  The  lease  did  not  expressly  grant  any  mode 
of  ^cess.  Access  to  the  rooms  demised  to  A.  was  gained  from  the  street  by 
pass^g^rough  a  hall  or  vestibule,  and  then  up  some  stairs.  The  front  block 
was  taken  under  eminent  domain  pr^cppflipgp,  and  A.  claimed  compensation. 
TI:;\ecourt"Beld  tnat  A.  was  entitled  to  compensation,  ir  ror  no  other  reason, 
formterTgrence  witn  iiis  easement  through  the  hall,  thoughrstrictiv  speaking, 
if  was"  not  a  wav  of  nei'&fesitv.  Bowen,  L.  J.,  said  :  ^'K'ow,  it  seems  to  me,  that 
tlie  access  to  the  demised  premises  falls  distinctly  within  the  class  of  rights 


\i 


DERiyATIVB  TITLES 


(Part  2 


WHEELDON  v.  BURROWS. 
(Court  of  Appeal  in  Chancery,  1S70.    r^  R.  12  Ch,  D.  31.) 

TiTiCSiGER,  L.  J."  The  material  facts  of  this  case  are  short  and  sim- 
ple. Rrior  to  the  month  of  November,  1875,  a  person  of  the  name 
of_  Samuel  Tetley  was  the  owner  of  certain  property  in  Derby,  which 
included  a  piece  of  vacant  land  having  a  frontage  to  the  street,  and 
a  silk  manufactory  and  certain  workshopj_at^  the  rear  of  and  abutting 
upon  that  vacant  land,  having  in  one  of  the  workshops  certain  windows 
which  opened  upon  that  land.  Owning  this  property,  Tetley  was 
minded  to  sell  it,  and  appears  to  have  put  it  up  in  several  lots  for  sale 
by  auction ;  and  in  respect  of  some  of  the  lots,  including  a  lot  which 
was  afterwards  sold  to  the  defendant,  the  sale  by  auction  was  aborTi ve. 
However,  an  agreement  was  made  at  the  auction  to  sell  one  of  the  lots 
to  the  plaintiff's  husband,  and  that  lot  was  conveyed  to  him  upon  the 
6th  day  of  January,  1876,  with  these  general  words,  "together  with  all 
\valls,  fences,  sewers,  gutters,  drains,  ways,  passages,  lights,  water- 
courses," and  the  other  general  words,  "easements  and  appurtenances 
whatsoever  to  the  said  piece  of  land  and  hereditaments  belonging  or 
in  anywise  appertainjm;."  The  conveyance  contains  n^jjesgrvaUon  in 
express  terms  oi  any  right  to  the  grantor  in  respect  of  liis  other 
land.  On  the  18th  of  February,  a  contract  was  made  bv  which  Tetley 
contracted  to  sfH  to  the  dgfertdant  the  silk  manufactory  and  the  work- 
s l^op  which  had  the  windows  opening  upon  the  land  previously  sqI d 
and  conveyed  to  the  plaintiff's  husband.  This  action  arises  from  a 
claim  on  the  part  of  the  defendant  to  have  as  of  right  the  light  en- 
ter into  those  windows,  or,  to  put  it  in  another  way,  to  prevent  the 
plajntiff  from  obstructing  these  windows  by  building  on  her  land.  Up- 
on the  matter  coming  before  the  Vice-Chancellor,  he  held  that  no  right 
in  respect  of  the  windows  was  reserved,  either  impliedly  or  expressly, 
under  the  conveyance  of  January,  1876;  and,  consec|uently,  that_tlie 
defendant,  as  privy  in  estate  with  the  grantor  of  the  land  whujii 
\vas  the  subject  of  the  conveyance,  was  entitled  to  no  right  of  light 
through  those  windows ;  in  other  words,  he  decided  that  the  plain- 
tiff was  entitled  to  build  upon  her  land,  although  the  result  of  _that 
building  might  be  to  obstruct  these  lights.  I  am  of  opinion,  both  upon 
principle  and  upon  authority,  that  the  Vice-Chancellor  decided  rightly. 

We  have  had  a  considerable  number  of  cases  cited  to  us,  and  out  of 

alluded  to  in  Wheeldon  v.  Burrows  (1870),  12  Ch.  D,  ."il.  Rv  the  p;rnnt-  of  nart 
of^a  tenement  it  is  nuw  well  known  tliat  there  will  pass  to  the  grantee  all 
Mmsp  fyiitnnnoiis-fliul  npjiMi'^iil  wi.;^nents  over  TTie  fitH^l'  Hart  or  rne  tenement, 
■  wl^ich  are  necessary  to  tlie  enjoyment  ol  tne  part  granted  and  have  been  uitiier- 
to  iise<l  rnerewirn.""  ~~  ~  ^"^ 

And  see  Brown  v.  Alabaster,  L.  R.  37  Ch.  D,  400  flSS7).  where  a  right  of  way 
through  a  walled-in  passagewa.y,  with  gates  oi»ening  into  the  same  from  the 
quasi  dominant  estate,  was  rl^nined  to  have  been  created  by  implied  grant  up- 
on conveyance  of  the  nuasi  dominant  estate. 
5  The  statement  of  facts  is  omitted. 


Ch.  4) 


CREATION   OF   EASEMENTS  BY   IMPLICATION 


479 


>i^/u-A 


them  T  think  that  two  propositions  may  be  stated  as  what  I  may  call  the 
general  rules  governino;  cases  of  this  kind.  The  first  of  these  rules 
is,  that  on  the  grant  by  the  owner  of  a  tenement  of  part  of  that 
tenement  as  it  is  then  used  and  enjoyed,  there  will  pass  to  "tlie 
grantee  all  those  continuous  and  annarent  |^^yUJP"'ts  Cbv  which,  of 
course,  I  mean  quasi  easements),  or,  in  other  words,  all  those  easc; 
ments  which  are  necessary  to  the  reasonablp-  pninY'''"i^'''<^  <^^  tli£--p4^-i- 
erty  granted,  and  which  have  been  and  are  at  the  time  of  the  grant 
u sed  by  the  owners  of  the  entirety  for  the  benefit  of  the  part  grante d . 
The  second  proposition  is  that,  if  the  grantor  intends  to  reserve  any' 
right  over  the  tenement  granted,  it  is  his  duty  to  reserve  it  ex]:)resslv 
in  the  grant.  Those  are  the  general  rules  governing  cases  of  this 
kind,  but  the  second  of  those  rules  is  subject  to  certain  exceptions. 
One  of  those  exceptions  is  the  well-known  exception  which  attaches 
to  cases  of  what  are  called  \\^^ia^^^fjece^it^  and  I  do  not  dispute 
for  a  moment  that  there  may  be,  and  probably  are,  certain  other  ex- 
ceptions, to  which  1  shall  refer  before  I  close  my  observations  upon 
this  case. 

Both  of  the  general  rules  which  I  have  mentioned  are  founded  upon 
a  maxim  which  is  as  well  established  by  authority  as  it  is  consonant  ^ 

to  reason  and  common  sense,  viz..  [that  a  grantor  shall  not  derogate  V-*--*-*— »— 
from  his  grant.'.  It  has  been  argued  before  us  that  there  is  no  dis- 
tinction between  what  has  been  called  an  implied  grant  and  what 
is  attempted  to  be  established  under  the  name  of  an  implied  reser- 
vation ;  and  that  such  a  distinction  between  the  implied  grant  and 
the  implied  reservation  is  a  mere  modern  invention,  and  one  wliich  runs 
confrary,  not  only  to  the  general  practice  upon  which  land  has  been 
bought  and  sold  for  a  considerable  time,  but  also  to  authorities  which 
are  said  to  be  clear  and  distinct  upon  the  matter.  So  far,  however, 
from  that  distinction  being  one  which  was  laid  down  for  the  first  time 
by  and  wbich  is  to  be  attributed  to  Lord  Westbury  in  Suffield  v.  Brown, 
4  D.  J.  &  S.  185,  it  appears  to  me  that  it  has  existed  almost  as  JjLr 
back  as  we  can  trace  the  law  upon  the  subject;  and  I  think  it  right, 
as  the  case  is  one  of  considerable  importance,  not  merely  as  regards 
the  parties,  but  as  regards  vendors  and  purchasers  of  land  generally, 
that  I  should  go  with  some  little  particularity  into  what  I  may  term 
the  leading  cases  upon  the  subject. 

The  first  case  to  which  I  refer  is  Palmer  v.  Fletcher,  1  Lev.  122, 
where  the  first  proposition  which  I  have  stated  as  a  general  rule  was 
laid  down  or  decided.  *  The  other  proposition  was  mooted,  but  there 
was  a  difference  of  opinion  amongst  the  members  of  the  Court  upon 
it,  and  it  was  not  decided.  [His  Lordship  then  read  the  report.]  It 
appears  therefore  that  upon_the^j3roposition  that  if  a  man  wishes. to  1  /4^</</>2Z 
derogate  from  his  grant  or  to  reserve  any  right  to  himself  he  should 
state  so  in  the  grant  itself,  there  was  a  difference  of  opinion  in  the 
Court,  and  that  point  was  not  decided. 

The  next  case  of  importance  is  Nicholas  v.  Chamberlain,  Cro.  Jac. 


^e^ 


480  DERIVATIVE  TITLES  (Part  2 

121."  [His  IvOrdship  then  read  the  report,  calling  attention  to  the 
words  "necessary  et  quasi  appendant  thereto."]  Now  if  that  determi- 
nation is  held  to  mean  that  in  all  cases  this  doctrine  of  implied  reser- 
vation stands  upon  exactly  the  same  footing  as  the  doctrine  of  implied 
grant,  I  think  it  will  be  found  that  over  and  over  again  that  has  been 
overruled.  But  it  is  clear,  as  I  have  already  suggested,  that  to  the 
second  rule  under  which  a  man  is  prevented  from  derogating  from 
his  grant  there  are  certain  exceptionsTone  of  those  being  in  regard 
to  easements  which  have  been  called  of  necessity;  and  if  Nicholas  v. 
Chamberlain  only  decides  that  point  it  appears  to  me  to  be  quite  right. 
That  Nicholas  v.  Chamberlain  was  not  meant  to  decide  more  than 
what  I  have  suggested  is,  I  think,  shewn  by  the  next  case,  Tenant  v. 
Goldwin,  2  Ld.  Raym.  1089,  1093.  There  Lord  Holt,  in  delivering  the 
judgment  of  tlie  Court,  deals. with  that  very  point  which  had  been 
mooted  in  Palmer  v.  Fletcher,  1  Lev.  122. ;  and  he  says,  "As  to  the 
case  of  Palmer  v.  Fletcher,  if.  indeed,  the  builder  of  the  house  sells  the 
house  with  the  lights  and  appurtenances,  he  cannot  build  upon  the 
remamder  of  the  ground  so  near  as  to  stop  the  lights  of  the  house; 
and  as  he  cannot  do  it,  so  neither  can  his  vendee.  But  if  he  had  sold 
the  vacant  piece  of  ground,  and  kept  the  house  without  reserving  the 
benefit  of  the  lights,  the  vendee  might  build  against  his  house.  But  in 
the  other  case,  where  he  sells  the  house,  the  vacant  piece  of  ground  is 
by  that  grant  charged  with  the  lights."  I  think  it  will  be  found  that, 
putting  aside  the  case  of  Pyer  v.  Carter,  1  H.  &  N.  916,  there  has  been 
no  distinct  decision  which  in  any  way  affects  the  principle  laid  down 
in  those  clear  and  distinct  terms  by  Lord  Holt. 

The  next  case  to  which  I  will  refer  is  Swansborough  v.  Coventry, 
9  Bing.  305,  which  has  been  cited  on  both  branches  of  the  argument 
addressed  to  us  by  Sir  Henry  Jackson.  That  was  a  case  of  a  sale  by 
auction  of  different  lots  to  different  persons  at  the  same  time,  and  it 
was  argued  (and  I  particularly  direct  attention  to  this)  that  such  a  case 
must  stand  upon  exactly  the  same  footing  as  if  the  land  in  respect  of 
which  the  easement  was  claimed  had  been  conveyed  first ;  consequently 
the  case  would  be  one  in  which  a  grant  of  the  easement  would  be  im- 
plied. Now  observe  what  that  admits,  and  the  argument  so  dealt  with 
upon  that  footing.  It  admits  that  priority  in  time  of  the  conveyance 
was  a  material  point  for  consideration,  because,  if  it  had  not  been  ad- 
mitted, then  the  Court  might  have  gone  to  the  general  question,  not 
whether  the  conveyances  were  at  the  same  time,  not  whether  one 
preceded  the  other  by  a  few  minutes,  or  a  few  days,  or  by  a  few  years, 

8  The  case  is  reported  in  Cro.  Jac.  121  (1606),  as  follows :  "Trespass.  It  was 
held  by  the  court  upon  demurrer,  That  if  one  erect  a  house,  and  build  a  con- 
duit thereto  in  another  part  of  his  land,  and  convey  water  by  pipes  toThe 
lipuse.  ana  afterwarg_sell  the  house  with  the  appurtenances,  pyr>p[>ting  the  lanS. 
Of  sell  the  Jaiid  to~anolher,  reserving  to  nuuseif  the  house,  the^conduit "and 
piposjass  with  tiie  bouse ;  because  it  Is  necessary,  et  quasi  appendant  thereto ; 
and  lie  shau  have  liberty  by  law  to  dig  in  the  land  for  amending  the  pipes._or 
making  them  new,  as  the  case  may  require,''  etc;        ' ^ 


Ch.  4)  CREATION   OF   EASEMENTS   BV   IMPLICATION  481 

but  whether  upon  the  severance  of  the  property  there  was  this  (if  I 
may  use  the  expression)  continuous  and  apparent  easement  in  respect 
of  which  a  reservation  might  be  claimed,  or  an  impHcation  of  a  grant 
might  be  made.  Lord  Chief  Justice  Tindal  deals  with  the  matter,  as  it 
appears  to  me,  upon  the  supposition  tliat  the  general  maxim  is  thatUi"  ^  . 

/  man  who  conveys  property  cannot  derogate  from  his  grant  by  reserv-  ^X^f-M-*-!:   rW< 
/    ing[  to  himself  impliedly  any  continuous  apparent  easements;  he  says   (j 
(Id.  309),  "It  is  well  established  by  the  decided  cases  that  where^ie 
same  person  possesses  a  house,  having  the  actual  use  and  enjoyment  of  \^  ^J0  §a^(^alIX^ 
certain  lights,  andaJso  possesses  the  adjoining  land  and  sells  the  house  ^^      ^ 
to  "another  person,  although  the  lights  be  new  he  cannot,  nor  canany  VJ^-'*-'"^-^ 
one  who  claims  under  him,  build  upon  the  adjoining  land  so  as  to  ob- 
struct or  interrupt  the  enjoyment  of  those  lights.    The  principle  is  laid 
down  by  Twysden  and  Wyndham,  JJ.,  in  the  case  of  Palmer  v.  Fletch- 
er, 1  Lev.  122,  'that  no  man  shall  derogate  from  his  own  grant.'     The 
same  law  was  adhered  to  in  the  case  of  Cox  v.  Matthews,  1  Ventr.  237, 
by  Chief  Justice  Holt  in  Rosewell  v.  Pryor,  6  Mod.  116,  and  lastly,  in 
the  later  case  of  Compton  v.  Richards,  1  Price,  27.    And  in  the  present 
case,  the  sales  to  the  plaintiff  and  the  defendant  being  sales  bv  the 
same  vendor  and  taking  place  at  one  and  the  same  time,  we  think  the 
rights  of  the  parties  are  brought  within  the  application  of  this  general 
rule  of  law."    It  appears  to  me,  therefore,  that  this  is  a  decision  which 
fortifies  the  previous  decision  of  Lord  Holt. 

I  now  come  to  ^yer  v.  Carter,  1  TJ  .Rr  N.  Q1(S,  which  seern<;  t"  hfpak 
the  hitherto  unbroken  current  of  authority  upon  this  point,  and  there 
can  be  no  doubt  thatSir  Henry  Jackson  is  justified  in  saying  that  if  that 
case  is  right  this  appeal  ought  to  be  allowed.  That  was  a  case  of  a 
somewhat  special  character.  A  house  was  conveyed  to  the  defendant 
by  a  person  who  was  the  owner  of  that  house,  and  also  of  the  house 
which  was  subsequently  conveyed  to  the  plaintiff;  and  there  had  been 
during  the  unity  of  the  ownership  the  enjoyment  of  the  easement  of  a 
spout  which  extended  from  the  defendant's  premises  over  the  plaintiff's 
premises,  and  by  which  water  was  conveyed  on  to  the  latter.  But  it  is 
material  to  observe  that  the  water  when  it  came  on  to  what  were  sub- 
sequently the  plaintiff's  premises  was  conveyed  into  a  drain  on  the 
plaintiff's  premises,  which  drain  passed  through  the  defendant's  prem- 
ises, and  in  that  way  went  out  into  the  common  sewer.  Subsequently 
the  house  over  whichvthis  easement  existed  was  conveyed  to  the  plain- 
tiff, and  upon  an  obstruction  of  the  drains  in  the  defendant's  house, 
which,  be  it  observed,  immediately  caused  a  flooding  of  the  plaintiff's 
house  by  the  very  water  coming  from  the  defendant's  house  the  plain- 
tiff brought  his  action,  and  it  was  held  there  that  the  plaintiff  was  enti->^ 
tied  to  maintain  his  action,  and  that  upon  the  original  conveyance  to>4>*i^  *•  CA'^ICx 
the  defendant  there  was  a  reservation  to  the  grantor  of  the  right  to  ^ 
carry jiway  this  water  which~came  trom  the  defendant's  premises  by 
the  medium  of  the  drain  which  also  went  through  his  premises. 
Aig.Pkop. — 31 


182  DERIVATIVE  TITLES  (Part  2 

Though  those  circumstances  were  special  in  their  character,  tliere  is  no 
doubt  that  the  principles  laid  down  by  the  Court  of  Exchequer  were 
as  wide  as  possibly  could  be.  That  Court  laid  down  that  there  was  no 
distinction  between  implied  reservation  and  implied  grant;  and  this, 
as  it  appears  to  me,  broke  the  hitherto  unbroken  current  of  authority 
upon  this  subject. 

Now,  although  it  is  possible  that  tlie  actual  decision  in  Pyer  v.  Car- 
ter, 1  H.  &  N.  916,  was  not  exactly  overruled,  the  principles  there  laid 
down  were  clearly  and  distinctly  overruled  by  the  same  Court  in 
White  v.  Bass,  7  H.  &  N.  722,  the  facts  of  which  case  were  these: 
A  man  was  the  owner  of  certain  land  and  of  a  certain  house  which  had 
windows  through  which  the  light,  not  as  an  easement  but  as  a  matter 
of  enjoyment  had  come  for  some  timiC.  He  let  the  land  (reserving  the 
house)  to  trustees,  subject  to  certain  covenants  by  which  they  were  to 
build  in  a  particular  manner  upon  the  land,  and  if  those  covenants  had 
been  complied  with,  and  they  had  built  in  the  specific  manner,  there 
would  have  been  no  obstruction  to  the  lights  of  the  house  which  the 
grantor  or  the  lessor  reserved.  Therefore,  if  we  were  entitled  in  these 
cases  to  go  back  to  matters  which  existed  before  the  time  of  the  con- 
veyance, we  should  have  found  here,  as  clearly  as  could  be  shown,  an 
intimation  on  the  part  of  the  lessor  that  if  building  was  to  be  -permit- 
ted on  the  adjoining  land,  it  was  only  to  be  permitted  under  such  con- 
ditions as  would  prevent  the  lights  of  the  house  being  obstructed.  But 
that  being  originally  the  position  of  matters  it  was  fpllowed  by  a  con- 
veyance of  the  reversion  in  the  land  to  the  trustees,  and  subsequently 
to  that  conveyance  tlie  house  was  conveyed  to  another  person,  and 
buildings  having  been  put  upon  the  land  occupied  by  the  trustees  con- 
trary to  the  terms  of  the  original  covenant,  and  of  such  a  kind  as  ob- 
structed the  lights  of  the  house,  an  action  was  brought  by  the  person 
to  whom  the  house  was  conveyed.  In  that  action  it  was  decided  that 
the  defendant  held  his  land  unfettered  by  the  original  covenant,  and 
unfettered  by  any  implied  reservation,  and  that  he  was  entitled  to  build 
in  such  a  way  as  he  thought  proper  on  his  land,  although  the  effect  of 
what  he  did  might  be  to  obstruct  the  lights  of  the  plaintiff.  In  giving 
judgment  Lord  Chief  Baron  Pollock  says  this  (7  H.  &  N.  730) :  ''My 
brother  Petersdorff  "has  cited  no  authority  for  the  precise  matter  which 
he  has  urged  before  us,  and  I  think  that  in  construing  a  conveyance 
of  land  we  must  collect  what  the  parties  intended  from  the  language 
they  have  used.  It  seems  to  me  that  we  cannot  look  into  the  lease  of 
the  2d  of  October,  1855,  for  it  is  merged  in  the  fee,  a  conveyance  of 
the  reversion  having  been  made  to  the  lessees,  and  we  must  look  to  that 
rnriArpyanrpalnnp  in  order  to  ascertain  the  rights  of  the  parties.  In 
that  conveyance  there  is  no  covenant  by  the^  purchasers  not  to  build  on 
the  land  so  as  to  nhstrnrt  the  light  and  air  coming  to  the  wirnjowq  of 
the  plaintiff's  house,  nor  indeed  any  limitation  of  the  right  to  use  the 
land."  Now,  no  case^an  be  more  clear  and  distinct  upon. the  point 
which  we  have  to  decide  to-day,  and  the  case  is  admitted  by  Sir  Henry 


Ch.  4)  CREATION   OF   EASEMENTS  BY   IMPLICATION  483 

Jackson  to  be  such,  but  he  suggested  that  we  ought  to  overrule  it  as 
being  an  exception  to  the  general  current  of  authority.  So  far  from 
that  being  the  case,  Pyer  v.  Carter,  1  H.  &  N.  916,  appears  to  me  to 
have  been  the  exception,  and  not  White  v.  Bass,  7  H.  &  N.  722. 

The  latter  case  was  followed  by  Suffield  v.  Brown,  4  D.  J.  &  S.  185. 
A  good  deal  has  been  said  about  that  case;  and  the  principles  upon 
which  this  Court  ought  to  act  in  dealing  with  decisions  of  Courts  of  co- 
ordinate authority  have  been  also  discussed.  I  think  I  may  say  for 
myself  (and  I  believe  I  am  expressing  the  views  of  the  other  members 
of  the  Court)  that  we  ought  not  to  lay  down  as  an  absolute  rule  that 
decisions  of  Lord  Chancellors,  at  all  events  sitting  alone,  are  to  be 
taken  as  decisions  of  the  Court  of  Appeal,  and  absolutely  binding  on 
this  Court  so  as  to  prevent  us  from  even  looking  into  the  grounds  or 
considering  the  case  which  was  before  the  particular  Lord  Chancellor. 
But  no  doubt  the  greatest  weight  ought  to  be  given  to  such  decisions, 
and  unless  they  are  shewn  to  be  manifestly  wrong  or  manifestly  con- 
trary to  the  general  current  of  authority  on  the  point  decided,  it  appears 
to  me  that  we  ought  not  to  take  upon  ourselves  to  overrule  them. 

That  being  so,  let  us  look  a  little  more  narrowly  into  that  case.  First, 
we  have  to  see  what  was  decided — and  by  that  I  do  not  mean  what  was 
absolutely  necessary  to  be  decided,  but  what  really  the  Lord  Chancel- 
lor took  upon  himself  to  decide,  and,  although  he  might  have  decided 
the  case  upon  other  grounds,  put  as  his  ratio  decidendi.  Upon  that 
point  there  can  be  no  doubt.  We  have  only  to  read  the  close  of  his 
judgment  to  see  that  he  put  it  entirely  upon  this  principle,  which  I 
have  stated  as  the  second  of  the  general  rules  applicable  to  cases  of  this 
kind,  that  a  man  cannot  derogate  from  his  own  grant,  and  that  as  a 
general  rule  no  implication  can  be  made  of  a  reservation  of  an  ease- 
ment to  the  grantor,  although  there  may  be  an  implication  of  a  grant 
to  the  grantee.  The  Lord  Chancellor  closes  his  judgment  by  saying 
(having  dealt  witli  some  of  the  authorities  as  to  continuous  and  appar- 
ent easements) :  "But  this  is  irrelevant  to  my  decision,  which  is 
founded  on  the  plain  and  simple  rule  that  the  grantor,  or  any  person 
claiming  under  him,  shall  not  derogate  from  the  absolute  sale  and 
grant  whirji  he  ha-^  m^c]e_"  Although,  therefore,  it  is  perfectly  true 
tliat,  looking  to  the  special  circumstances  of  that  case,  it  might  have 
been  decided  upon  those  special  circumstances  so  as  even  to  admit  the 
proposition  for  which  Sir  Henry  Jackson  contends,  it  is  equally  clear 
that  the  Lord  Chancellor  did  not  so  decide  the  case,  but  decided  it  upon 
a  distinct  negative  of  that  proposition.  If  we  were  to  stop  here,  it 
seems  to  me  that,  looking  to  the  fact  that  this  was  not  a  case  in  which 
this  point  in  question  was  mooted  for  the  first  time,  but  that  the  point 
had  been  mooted  and  decided  as  early  as  the  third  year  of  the  reign 
of  Queen  Anne,  we  should  not  be  justified  in  doing  anything  but  fol- 
low the  principles  enunciated  by  Lord  Westbury. 

But  Suffield  V.  Brown,  4  D.  J.  &  S.  185,  has  been  confirmed  by  an 
equally  high  authority,  for  in  Crossley  &  Sons  v.  Lightowler,  Law 


484  DERIVATIVE  TITLES  (Part  2 

Rep.  2  Ch.  478,  Lord  Chelmsford  as  Lord  Chancellor  had  to  deal  with 
a  similar  question,  and  he  there  says:  "Lord  Westbury,  however,  in 
the  case  of  Suffield  v.  Brown,  refused  to  accept  the  case  of  P^^  v. 


Carter,  1  H.  &  N.  916,  as  an  authority,  and  said.Vtt  seems  to  be  mor? 
w,    (    reasonable  and  just  to  hold  that  if  the  grantor  irftends  to< reserve  any 


IJbJt^^  '  \  right  over  the  property  ^g^ranted  it  is  his  dutv  to  reserve  it. expressly 
Vj"  /yv^  -\  in  the  grant  rather  than  to  limit  and  cut  down  the  operation  of  a  plain 
{\/^  I  grant  (which  is  not  pretended  to  be^otherwise  than  in  conform]ty_with  1 

/   the  contract  between  the  parties)  bvthe  fiction  of  an  implied  reserva-  V 
"v*^^  I    tion?    Tentirely  agree  with  this  view.    It  appears  to  me  to  be  an  im-  1 

Pj/^  material  circumstance  that  the  easement  should  be  apparent  and  con- 

\'  tinuous,  for  non  constat  that  the  grantor  does  not  intend  to  relinquish 

it  unless  he  shews  the  contrary  by  expressly  reserving  it.     The  argu- 
ment of  the  defendants  would  make,  in  every  case  of  this  kind,  aji  '■ 
implied  reservation  by  law ;  and  yet  the  law  will  not  reserve  anything  \ 
out  of  a  grant  in_£aYOur  of  a  ^antor  except  in  case  of  iiece^^sityJ'         .  \ 

Now  the  only  case  in  the  Court  of  Appeal  which  is  suggested  as  be- 
ing contrary  to  this  high  authority  of  two  Lord  Chancellors,  is  Watts 
v.  Kelson,  Law  Rep.  6  Ch.  166,  174,  and  no  doubt  there  are  observa- 
tions of  Lord  Justice  Mellish  to  the  efifect  that  the  order  of  conveyance 
in  point  of  date  is  immaterial,  that  Pyer  v.  Carter,  1  H.  &  N.  916,  is 
good  sen^e  and  good  lav/,  and  that  most  of  the  Common  Law  Judges 
have  not  approved  of  Lord  Westbury's  observations.     But,  putting 
(Oj^    aside  for  the  moment  that  this  was  a  mere  dictum  of  the  Lord  Justice 
^ .  VP^  ^  during  the  argument,  I  must  observe  that  this  is  not  exactly  so,  as  in^ 
^       ^jiF^^  Whifp  V    Rnqq^7  H.  ^r  \.\.J7?.   the  TnHo-p<;  nf  thp  Cnnrt  of  Exchequer 
0  f^^ J,  ,       had  distinctly,  jii,jD£§aijds_the.r'"^'^^^^n IT  "f  ^Y^^  v-  Carter,  overruled 
f^^   -    ^  that  case.     No  doubt,  also.  Lord  Justice  James  says,  "I  am  satisfied 

^^jHT  with  the  decision  in  Pyer  v.  Carter."     But  in  the  considered  judgment 

'.^^^  of  tlie  Court,  when  if  it  had  been  intended  to  say  that  Suffield  v. 

^^^  Brown,  4  D.  J.  &  S.  185,  was  not  law,  one  would  have  thought  there 

would  have  been  something  distinct  upon  the  point,  there  is  not  one 
word  to  the  effect  of  that  which  had  been  said  by  the  Lords  Justices 
during  the  argument.     All  that  is  said  about  it  is  this,  Lord  Justice 
Mellish,  who  delivered  the  judgment,  after  referring  to  Nicholas  v. 
Chamberlain,  Cro.  Jac.  121,  said,  "This  case  has  always  been  cited  with 
approval,  and  is  identical  not  only  in  principle  but  in  its  actual  facts 
with  the  case  now  before  us.     It  was  expressly  approved  of  by  Lord 
^       Westbury  in  Suffield  v.  Brown,  4  D,  J,  &  S.  185,  where,  though  he  ob- 
rA^    jected  to  the  deQJsion  in  Pyer  v.  Carter,  1  H.  &  N.  916,  in  which  it  was 
^»^^  bp|r]  th^^-  a  ria{jt  to  an  cxistcut  continuous  apparent  easement  was  im- 

^jJ^       |i)  pjiedly  reserved  in  the  conveyance  by  the  owner  of  two  houses  in  the 

^  jLy^^  allejo^ed  serviejii:.iiQii^_es.^vet  he  seems  to  agree  that  the  right  to  such 

an  easement  would  pass  by  implied  grant  where  the  domijiant  tenement 
is  conveyed  first ;"  and  that  is  what  the  Court  of  Appealhad  to  decide 
in  Watts  v.  Kelson,  Law  Rep.  6  Ch.  166.  Therefore  Watts  v.  Kelson 
is  no  authority  to  justify  us  in  overruling  Suffield  v.  Brown,  still  less 


Ch.  4)  CREATION   OF   EASEMENTS  BY   IMPLICATION  485 

for  overruling  it,  supported  as  it  is  by  the  case  of  Crossley  &  Sons 
V.  Lightowler,  Law  Rep.  2  Ch.  478.  Thus,  then,  as  it  appears  to  me, 
stand  the  principal  authorities  on  the  general  rules  of  law  which  I 
stated  at  the  commencement  of  this  judgment. 

Other  cases  which  have  been  cited  during  tte-  argument  illustrate  the 
exceptions  to  the  second  of  those  general  rules.  As  I  have  already 
said,  there  is  an  undoubted  exception  in  cases  where  the  easement  is 
what  is  called  a  way  of  necessity.  Thus  in  Pinnington  v.  Galland,  9 
Ex.  1,  12,  which  was  a  case  for  disturbance  of  a  right  of  way,  there 
were  five  closes,  two  of  them  called  the  Holme  Closes,  which  were  sep- 
arated by  the  others  from  the  only  available  highway,  and  which  were 
conveyed  subsequently  in  point  of  time  to  the  conveyance  of  the  re- 
maining closes  through  which  this  way  de  facto  ran.  In  deciding  that 
the  way  still  existed,  Baron  Martin  appears  to  me  to  have  put  the  case 
entirely  upon  the  exception  to  which  I  am  referring.  He  says  this : 
"Secondly,  assume  that  the  conveyance  to  Mr.  Dearie  was  executed 
the  first.  In  this  case  the  Rye  Holme  closes  were  for  a  short  period  of 
time  the  property  of  Mr.  Dickinson  after  the  property  in  the  land  con- 
veyed to  Mr.  Dearie  had  passed  out  of  him.  There  is  no  doubt  appar- 
ently a  greater  difficulty  in  holding  the  right  of  way  to  exist  in  this  case 
than  in  the  other ;  but  according  to  the  same  very  great  authority  the  /^  •  *  ^ 
law  is  the  same,  for  the  note  1  Wms.  Saund.  323.  n.,  proceeds  thus:  (|*4v***>~V^'*' 
'So  it  is  when  he  grants  the  land  and  reserves  the  close  to  himself ;'  /^  y//.^ 
and  he  cites  several  authorities  which  fully  bear  him  out:  Clark  v.  'V*'^^'^'^ 
Cogge,  Cro.  Jac.  170;  Staple  v.  Heydon.  6  Mod.  1;  Chichester  v.  (/ 
Lethbridge,  Willes,  72,  n.  ft  nn  dnnht-  sppms  extr^nrdinnry  tVinf  n  mnn 
should  have  a  right  which  certainly  derogates  from  his  own  grant ;  but 
the  law  is  distinctly  laid  down  to  be  so,  and  probably  for  the  reason 
given  in  Dutton  v.  Taylor,  Lutw.  1487,  that  it  was  for  the  public  good, 
as  otherwise  the  close  surrounded  would  not  becapable  of  cultivatign." 

Now  those  last  words  clearly  shew  that  the  whole  foundation  of  the 
judgment  in  the  case  of  Pinnington  v.  Galland,  9  Ex.  1,  12,  was  that 
the  way  claimed  in  the  case  was  a  way  of  necessity,  and  it  is  equally 
clear,  as  it  seems  to  me,  that  Baron  Martin  and  the  Court  whose  judg- 
ment he  delivered  in  no  way  disputed  the  general  maxims  to  which  I 
have  referred.  The  case  of  Davies_v^ear,  Law^ep.  7  Eq.  427 ...431. 
also  appears  to  me  to  have  been  decided  onjthe^same^asis.  There  a 
rnan,  a  builder,  had  got  a  lease  of  land  for  the  purpose  of  building  upon 
that  land,  and  he  proposed  to  build  upon  it  in  such  a  way  as  that 
through  an  archway,  which  was,  at  all  events,  standing  to  such  an  ex- 
tent as  to  shew  that  it  was  intended  to  be  used  for  a  passage — that 
through  that  archway  should  be  the  only  means  of  communication 
with  certain  stables  which  were  to  be  erected.  That  being  the  position 
of  tilings,  a  portion  of  the  land  was  sold  to  a  third  person,  and  the  ques- 
tion arose  whether  it  was  open  to  that  person  to  build  upon  his  land  in 
such  a  way  as  to  obstruct  this  one  only  way  into  the  stable.  The  Mas- 
ter of  the  Rolls  (Lord  Romilly)  held  that  it  was  not.    And  why?    He 


^' 


i86  DERIVATIVE  TITLES  (Part  2 

founded  his  opinion  upon  the  basis  of  this  exception  to  which  I  am  re- 
^)  ferring.  He  says:  "The  question  is,  whether  the  defendant  has  a 
Zr  right  to  shut  up  the  archway,  and  to  intercept  all  access  to  Erskine 
Mews  through  this  passage.  This  depends  upon  whether  this  ease- 
ment  is  reserved  by  impilication  on  the  assignment  of  the  house  to'  the 
defendant:  and  this  depends  upon  whether  the  easement  is  apparent, 
and  also  is  a  way  of  necessity." 

These  cases  in  no  way  support  the  proposition  for  which  the  appel- 
lant in  this  case  contends ;  but,  on  the  contrary,  support  the  propositions 
that  in  the  case  of  a  grant  vou  may  imply  a  grant  of  such  continuous 
and  apparent  easements  or  sucheasements  as  are  necessary  to  tlie  jea- 
sonable  enjoyment  of  the  property  conveyed, "and  have  in,  fact  been  en- 
joyed during  the  unity  of  ownership,  but  that,  with  the  exception  which 
I  have  referred  to  of  (easements  of  necessitv.^vou  cannot  imply  a  simi- 
lar reservation  in  favour  of  the  grantor  of  land. 

Upon  the  question  whether  tliere  is  any  other  exception,  I  must  refer 
both  to  Pyer  v.  Carter,  1  H.  &  N.  916,  and  to  Richards  v.  Rose,  9  Ex. 
218,  and,  although  it  is  quite  unnecessary  for  us  to  decide  the  point,  it 
seems  to  me  that  there  is  a  possible  way  iri  which  these  cases  can  be 
supported  without  in  any  way  departing  from  the  general  maxims  upon 
which  we  base  our  judgment  in  tliis  case.  I  have  already  pointed  to 
the  special  circumstances  in  Pyer  v.  Carter,  and  I  cannot  see  that  there 
is  anything  unreasonable  in  supposing  that  in  such  a  case,  where  the 
defendant  under  his  grant  is  to  take  tliis  easement,  which  had  been  en- 
joyed during  the  unity  of  ownership,  of  pouring  his  water  upon  the 
grantor's  land,  he  should  also  be  held  to  take  it  subject  to  the  reciprocal 
and  mutual  easement  by  which  that  very  same  water  was  carried  into 
the  drain  on  that  land  and  then  back  through  the  land  of  the  person 
from  whose  land  the  water  came.  It  seems  to  me  to  be  consis_t£iiL^vith 
reason  and  common  sense  that  these  reciprocal  easements  should  be  im- 
plied; and,  although  it  is  not  necessary  to  decide  the  point,  it  seems 
to  me  worthy  of  consideration  in  any  after  case,  if  the  question  whether 
Pyer  v.  Carter  is  right  or  wrong  comes  for  discussion,  to  consider  that 
point.  Richards  v.  Rose,  although  not  identically  open  to  exactly  the 
same  reasoning  as  would  apply  to  Pyer  v.  Carter,  still  appears  to  me  to 
be  open  to  analogous  reasoning.  Two  houses  had  existed  for  some 
time,  each  supporting  the  other.  Is  there  anything  unreasonable — is 
there  not,  on  the  contrary,  something  very  reasonable — to  suppose  in 
that  case  that  the  man  who  takes  a  grant  of  the  house  first  and  takes 
it  with  the  right  of  support  from  that  adjoining  house,  should  also 
give  to  that  adjoining  house  a  reciprocal  right  of  support  from  his  own? 
One  other-point  remains,  and  that  I  shall  dispose  of  in  a  very  few 
words.  It  is  said  that,  even  supposing  the  maxims  which  I  have  stated 
to  be  correct,  this  case  is  an  exception  which  comes  within  the  rule 
laid  down  in  Swansborough  v.  Coventry,  9  Bing.  305,  and  Compton  v. 
Richards,  1  Price,  27,  namely,  that,  although  the  land  and  houses  were 
not  in  fact  conveyed  at  the  same  time,  they  were  conveyances  made  as 


Ch.  4)  CREATION   OF   EASEMENTS   BY   IMPLICATION  487 

part  and  parcel  of  one  intended  sale  by  auction.  It  seems  to  me  that 
that  proposition  cannot  be  supported  for  one  moment.  We  start  here 
with  an  absolute  conveyance  in  January,  1876.  What  right  have  we  to 
look  back  to  any  previous  contract  or  to  any  previous  arrangement ^>-:p» 
between  the  parties?  If  it  had  been  the  case  of  an  ordinary  contract, ^--i-^ 
and  there  had  been  parol  negotiations,  it  is  well-established  law  that 
you  cannot  look  to  those  parol  negotiations  in  order  to  put  any  con- 
struction upon  the  document  which  the  parties  entered  into  for  the 
purpose  of  avoiding  any  dispute  as  to  what  might  be  their  intentions  in 
the  bargain  made  between  them.  The  same  rule  of  law  applies,  and 
even  more  strongly  in  the  case  of  a  conveyance,  which  alone  must  reg- 
ulate the  rights  of  tlie  parties.  In  the  cases  which  have  been  cited  the 
conveyances  were  founded  upon  transactions  which  in  Equity  were 
equivalent  to  conveyances  between  the  parties  at  the  time  when  tlie 
transactions  were  entered  into,  and  those  transactions  were  entered 
into  at  the  same  moment  of  time  and  as  part  and  parcel  of  one  trans- 
action. There  mav  be.  and  there  is.  according  to  Swansborough  v. 
Coventry.  9  Ring.  305.  another  exception  to  the  rule  which  I  have  men- 
tioned ;  but  here  the  sale  by  auction  was  abortive  as  regards  the  defend- 
ant's property.  There  was  a  conveyance  in  January  of  the  plaintiff's 
property  without  any  reservation,  and  there'  was  no  contract  of  pur- 
chase  on  the  part  of  the  defendant  until  more_tl'ian  a  month  after  that 
conveyance  had  been  complete!  TtTdieveTTamexpressing  the  view  of 
the  other  members  of  the  Court  when  I  say  that  it  appears  to  the  Court 
that  under  such  circumstances  there  is  no  exception  to  the  general  rule. 
For  these  reasons,  therefore,  the  appeal  should  be  dismissed. 

James,  L.  J.  The  Lord  Justice  has  been  kind  enough  to  express 
the  judgment  of  the  Court.  I  only  want  to  say  something  in  addition, 
that  in  the  case  of  Nicholas  y.  Chamberlain,  Cro.  Jac.  121,  the  Court 
seems  to  have  really  proceeded  on  the  ground  that  it  was  not  an  in- 
corporeal easPTTipnf^  hnt  fhnt  the  whole  of  the  conduit  through  which 
the  water  ran  wa'^  ^  corporeal  part  of  the  house,  just  as  in  any  old  city 
there  are  cellars  projecting  under  other  houses.  They  thought  it  was 
not  merely  the  right  to  the  pnssngp  of  \v7\\er,  but  that  the  conduit  itself 
passed  as  part  of  the  hpuse.  just  like  a  flue  passing  through  another 
man's  house.     The  appeal  is  dismissed  with  costs. 

BaggalIvAY,  L.  J.,  concurred. 


PHILLIPS  y.  LOW- 

(Cliancery  Division,  1S91.     [1S92]  1  Ch.  47^227^ 

The  plainti£E-^Arthur  Phillips  was  the  owner  in  fee  of  a  messuage 
known  as  Meadowcroft^t  Catford,  in  the  county  of  Kent,  and  the 
plaintiff  Buck  was  the  lessee  thereof. 

The  defend§,nt5;  were  tht;^  rvwners  in  fee  of  the  land  lying  to  thf^  north 
o^and  adjoining"  Meadowcroft.  and  had  obstructed  the  light  and  air 


488 


DERIVATIVE   TITLES 


(Part  2 


^  Ti 


coming  thereto  by  erecting  a  buildin.£^  and  placing  hoardings  on  the 
land  close  to  the  messuage. 

The  messuage  anH  InnH  formerly  both,  belonged  to  one  T-  J-  Stainton, 
who  died  possessed  thereof  in  the  year  1R7?|  hp  having  previously  built 
the  messuage  as  a  washhouse,  stables,  billiard  room,  and  observatory, 
and  it  was  the  access  of  light  and  air  to  a  door  and  windows  in  such 
niessijage  which  the_defeiidants  had  nbstriicted. 

At  the  time  the  messuage  was  built  and  down  to  the  time  of  the 
death  of  J.  J.  Stainton  the  only  building  standing  on  the  land  to  the 
north  of  the  messuage  was  a  cottage  called  JLaurel  Ijudger-surrounded 
by  a  garden  occupied  by  one  G.  T.  Williams,  and  not  interfering  in  any 
way  with  any  light  or  air  coming  to  the  messuage. 
.  J.J.  Staintori_inade  his  w411  dated  the  30th  of  June,  1875,  and  there- 
by devised  to  G.  T.  WiTTiams  the  cottage  called  Laurel  Lodge. ^together 
with  the  Jand  thereto  adjoming  up  to  the  boundary  of  Meadowcroft. 
and  devised  all  the  residue  of  hi^  freehold  property  to  trustees  upon 
trust  for  sale. 

The  plaintiff  EJyllips  became  entitled  to  Meadowcroft  under  an  ex- 
ercise of  the  trust  for  sale  contained  in  the  said  will.  Tbe  defendants 
purchased  Lnuu^l  Lod^e  and  tlip  ndioining  land  from  G.  T.  VVilliams. 

The  plaintiff  Buck  resided  in  one  part  of  Meadowcrot't,  and  carried 
on  business  as  a  coachbuilder  on  the  other  part  thereof. 

In  August,  1890,  the  defendants  commenced  to  build  a  lodge  on  the 
north  side  of  Meadowcroft  within  a  few  inches  thereof  which  almost 
entirely  obstructed  the  light  and  air  coming  to  the  door  and  wind^w^ 
in  sucn  messuage. 

Complaints  were  made  by  the  plaintiffs  to  the  defendants  that  they 
were  not  entitled  to  build  the  lodge,  and  the  defendants  insisting  that 
they  had  such  right,  the  writ  in  this  action  was  issued  on  the  26th  of 
January,  1891,  and  on  the  29th  of  January  the  defendants  commenced 
to  erect,  and  shortly  afterwards  completed  a  hoarding  painted  black 
within  six  inches  of  most  of  the  windows  and  openmgs  in  Meadow- 
croft, 

A  motion  was  made  in  this  action  for  an  injunction  to  restrain  the 
obstruction  to  the  access  of  light  and  air  as  aforesaid,  whereupon  the 
defendants  undertook  without  prejudice  to  remove  the  hoarding  and 
the  motion  was  ordered  to  stand  till  the  trial. 

The  plaintiffs__claimed  that  the  defendants  might  be  restrained  from 
ot^structing  or  interfering  with  the  access  of  light  and  air  coming_to 
Meadowcroft,  and  that  they  might  be  ordered  to  remove  the  building 
already  erected  by  tliem,  or  to  pay  to  the  plaintiffs  damages  for  ob- 
structing and  interfering  with  the  access  of  such  light  and  air. 

The  action  now  came  on  for  trial. 

ChiTty,  J.  Nothing  turns  on  the  particular  language  of  the  wilL— 
that  is  admitted.  The  circumstance  that  the  devise  of  the  defendants' 
tenement  is__£:^ressed  to  be  made  free  of  incumbrances^  that  it  is  a 
specific  devise  in  form,  and  that  the  plaintiff's'  tenement  is  comprised 


Ch.  4)  CREATION   OP   EASEMENTS   BY   IMPLICATION  489 

in  a  residuary  devise  of  messuages,  are  all  immaterial,  and  rightly  ad- 
mitted to  be  so.  The  term  "incumbrance"  does  not  affect  the  question 
of  light;  and  a  devise  of  land,  though  in  form  residuary,  is  specific. 
Lancefield  v.  Iggulden,  Law  Rep.  10  Ch.  136. 

The  question,  then,  may  be  stated  in  this  simple  form :  A  man  being 
seised  in  fee  in  possession  of  a  house  with  windows,  and  of  an  adjoin- 
ing fieldoveT~wHinrtITeTTght  required  for  the  windows  passes,  devises 
the  house  to  one  and  the  field  to  another;  does  the  right  to  the  light 
over  the  field  pass  to  the  devisee  of  the  house,  or  is  the  devisee  of  the 
field  entitled  to  block  up  the  windows  ? 

If  the  owner  of  the  house  and  field  by  deed  for  v^lue  grants  the 
house  but  retains  the  field,  it  is  settled  law  that  a  right  to  the  light  re-  J-J  ennr*>jux/  a^ 
quired  for  the  enjoyment  of  the  house  passes  to  the  grantee?    Why?  /  /-^y^TA 

The  reason  stated  in  Palmer  v.  Fletcher,  1  Lev.  122,  the  leading  case     .  ,      ^ 
on  the  subject,  is  that  "the  lights  are  a  necessary  and  essential  part  of    ^-*-*'^^* 
the  house."    In  other  words,  what  is  conveyed  is  not  a  mere  brick  or 
stone  building  with  apertures  called  windows,  but  a  house  with  win- 
dows enjoying  light.    This  is  the  broad,  substantial  reason  which  com- 
mends itself  at  once  to  the  common  sense  of  mankind.     Worked  out 
soniewhat  more  technically,  the  conveyance  operates  as  an  implied 
grant  of  the  light.    Blocking  up  the  windows  by  the  grantor  is  regard- 
ed  as  an  attempt  on  his  part  to  derogate  from  his  grant — a  form  oi 
expression  which  assumes  that  the  right  to  light  has  passed  to  the 
grantee.     The   implication   does  not  necessarily   arise   upon   a  mere 
perusal  of  the  deed  itself.     Generally  the  situation  and  ownership  of 
the  adjoining  field  is  not  disclosed;   but  the  implication  of  grant  arises  yjJ^^,^*^  >LAj 
pr^ma  facie  so  soon  as  the  facts  are  ascertained  that  the  light  required  «  -  •    — ^' 

for  the  windows  passed  over  the  field,  and  that  the  grantor  was  owner  ^^**^'^V^        '^^ 
oi  the  field  at  the  time  of  the  grant.    On  these  facts  being  known,  and  '  ' 

in  the  absence  of  any  other  special  circumstances,  the  law  imputes  jo 
the  parties  an  intention  that  the  easement  of  light  should  pass  with  the 
house  bv  virtue  of  the  grant  As  I  have  recently  stated  with  more  ful- 
ness my  opinion  in  regard  to  the  subject  of  the  implied  grant  in  the 
case  of  Bcddington  v.  Atlee,  35  Ch.  D.  317,  I  refrain  from  repeating 
what  I  there  said.  When  all  the  surrounding  circumstances  which  may 
legitimately  be  inquired  into  are  made  known,  the  result  may  be  dif- 
ferent— the  prima  facie  implication  or  inference  may  be  wholly  dis- 
placed or  considerably  modified,  as  was  held  in  the  case  of  the  Birming- 
ham, Dudley  and  District  Banking  Company  v.  Ross,  38  Ch.  D.  295. 
Where  the  implication  arises,  the  easement  which  passes  is  an  easement 
created  de  novo. 

The  principle  of  the  decision  in  Palmer  v.  Fletcher,  1  Lev.  122,  ap- 
plies where  the  house  and  the  land  are  sold  and  conveyed  to  two  differ- 
ent grantees_contemporaneously,  as  stated  by  the  late  Master  of  the 
Rolls  (Sir  O.  Jessel),  in  his  judgments  in  Rigby  v.  Bennett,  21  Ch.  D. 
559,  567,  and  Allen  v.  Taylor,  16  Ch.  D.  355.       '  ' 

It  was  argued  for  the  defendants  that  the  principle  applies  only 


490  ,  DERIVATIVE  TITLES  (Part  2 

where  the  conveyance  is  by  deed  for  valuable  consideration.  No  au- 
thority was  cited  in  support  of  this  contention,  which  appears  to  me  to 
be  absolutely  without  foundation.  The  implied  grant  does  not  arise 
from  the  consideration  for  the  grant,  but  from  the  grant  and  the  sur- 
rounding circumstances,  whether  the  intention  of  both  the  grantor  and 
grantee  under  a  voluntary  deed  is  regarded,  or  the  intention  of  the 
grantor  alone  is  regarded,  the  result  is  the  same.  The  intention  to  be 
imputed  is  that  a  house  with  lights  shall  pass. 

This  argument  as  to  a  voluntary  conveyance  was  a  step  towards  the 
^^yy  J,  defendant's  main. contention,  that  the  principle  does  not  apply  to  a  will. 
'iT''^'  /  .  ."In  mv  opinion,  it  does  apply  to  a  will.  No  authoritv  for  this  conten- 
,,^^^0sjA'%n  ti^n  on  the  defendants'  part  was  cited.  All  the  reasoning  on  the  sub- 
i.^%jf  iK'iH^''  ject  appears  to  me  to  apply  to  a  will  where  the  intention  of  the  testator 
•  alone  is  regarded.     A  will  operates  as  a  simultaneous  conveyance  of 

the  house  and  the  field  to  the  two  devisees!  The  question  is  covered, 
or  all  but  covered  by  two  authorities  cited  for  the  plaintiffs.  In  Barnes 
V.  Loach,  4  Q.  B.  D.  494,  it  was  decided  that  the  easement  of  light 
passed  witli  the  house  without  express  words,  the  ground  of  the  de- 
cision as  stated  in  the  judgment  of  the  Court  being,  that  if  the  owner 
of  an  estate  bag  hppn  in  the  habit  of  using  quasi  easements  of  an  ap- 
parent and  continuous  character  over  the  one  part  for  the  benefit  of 
the  other  part  of  his  property  and  aliens  the  quasi  dominant  part  to  one 
person,  and  the  quasi  servient  to  another,Jhe  respective  alienees,  m  the 
absence  of  express  stipulation,  take  the  land  burdened  or  benefited  as 
the  case  may  be,  by  the  qualities  which  the  previous  owner  had  a  right 
toattach  to  them.  .Pearson  v.  Spencer.  1  B.  &  S.  571 :  3  B.  &  S.  761. 
was  a  case  of  a  will.    The  testator  had  unity  of  possession  of  an  estate 

I  which  he  divided  by  his  will  into  two  farms,  devising  one  to  the  plain- 
tiff and  the  other  tp  the  person  under  whom  the  defendant  claime d . 
The  way  claimed  by  the  defendant  was  the  sole  approach  which  had 
been  used  by  the  testator  for  the  house  and  farm  devised  to  the  person 
through  whom  he  claimed.  It  was  decided  that  this  way  passed  to  the 
devisee  of  the  defendant's  farm,  although  there  were  no  express  words 
of  gift  of  the  way.  In  delivering  the  judgment  of  the  Court  of  Queen's 
Bench,  Blackburn,  J.,  after  referring  to  the  distinction  between  con- 
tinuous and  discontinuous  easements,  stated  that  Pheysey  v.  Vicary, 
16  M.  &  W.  484,  was  an  authority  that  the  rule  in  this  respect  applied 
as  well  to  a  will  as  to  a  deed.  In  delivering  the  judgment  of  the 
Exchequer  Chamber,  Erie,  J.,  stated  that  the  judgment  of  the  Court 
below  was  upheld  on  the  construction  and  effect  of  the  will  taken  in 
•connection  with  the  mode  in  which  the  premises  were  enjoyed  at  the 
time  of  the  will.  He  said  that  the  case  fell  under  that  class  of  implied 
grg^s  where  there  isno  necessity  for  the  right  claimed,  but  where_the 
tenement  is  so  constructed  as  that  part  of  it  involves  a  necessary  de- 
pendence, in  order  to  its  enjoyment  in  the  state  it  was  when  devised. 
upon  the  adjoining  tenement.  Upon  the  facts  of  that  case,  the  Courts 
held  that  the  way  passed  under  the  will.    The  ground  of  this  decision 


Ch.  4) 


-ty^-i^^- 


CREATION   OF   EASEMENTS  BY   IMPLICATION 


491 


applies  to  the  present  case.  The  house  devised  to  the  i>ersons  through 
whom  the  plaintiffs  claim  contained  windows  so  constructed  as  to  in- 
volve a  necessary  dependence,  in  order  to  its  enjoyment  of  light^  upo.n 
the  adjoining  tenement.  Light  is  an  apparent  continuous  easement. 
Gale  on  Easements  (4th  Ed.J  p.  22.  The  case  of  Polden  v.  Bastard, 
Law  Rep.  L  Q.  B.  156,  which  related  merely  to  the  easement  or  quasi 
easement  of  a  way  which  is  a  discontinuous  easement,  is  not  in  point. 

It  was  part  of  the  argument  for  the  defendants,  that  the  basis  of  the 
doctrine  laid  down  in  Palmer  v.  Fletcher,  1  Lev.  122,  and  developed  by 
subsequent  authorities,  was  contract,  or  implied  contract  on  the  part 
of  the  person  retaining  or  taking  the  field  that  he  would  not  obstruct 
the  lights,  and  that  where  there  was  no  contract,  the  doctrine  was  in-  rf*/^  C^v^Zfc*^ 
applicable^and  consequently  that  as  there  was  no  contract  between  a 
testator  and  his  devisees,  there  was  no  ground  for  applying  the  doctrine 
to  the  case  of  a  will.  In  support  of  this  contention,  certain  expressions 
of  the  Lord  Justices  in  their  judgments  in  the  case  of  the  Birmingham, 
Dudley  and  District  Banking  Company  v.  Ross,  38  Qi.  D.  295,  were 
cited.  It  is  unnecessary  to  deal  with  them  at  length.  It  is  sufficient  to 
say,  that  in^mv  opinion  the  Lords  Justices  did  not  intend  to  alter, the 
law  as  to  implied  grants,  and  that  my  decision  in  this  case  is  not  affecte.d 
by  anything  which  fell  from  them ;  and  further,  assuming  that  where 
there  is  a  deed  between  parties,  the  doctrine  ought  to  be  explained 
theoretically  as  resting  on  contract  as  its  basis.  I  see  no  difficulty  in 
applying  by  analogy,  in  the  case  of  a  will,  an  obligation,  or  condition, 
orduty  (whichever  may  be  the  right  term)  on  the  part  of  the  devisee, 
or  imposed  on  him  by  the  testator,  not  to  obstruct  the  access  of  ligh t 
to  the  house  devised  to  another.  I  prefer,  however,  to  rest  my  judg- 
ment on  the  broad  principles  already  statedj 


RAY  V.  HAZELDINE. 


(Chancery  Division.     [1904]  2  Ch.  l^^Jw        >j     '   ^At^^^K^^f^^"^ 

Pripr  to  the  date  of  the  indenture  next  hereinafter  meiytloned.  tne 
defendant  was  the  owner  in  fee  simple  of  two  adjacent  nouses  in 
Cheadle  Hulme,  Cheshire.  By  an  indenture  dated  October  18,  1895, 
the  defendant  conveyed  one  of  these  houses  to  the  plaintiff's  husband 
in  fee  simple,  and  this  house  was  subsequently  conveyed  by  him  to  the 

7  Milner's  Safe  Co.  v.  Great  Northern  &  City  R.  Co.,  [1907]  1  Ch.  208 ;  Gor- 
ton-Pew Fisheries  Co.  v.  Tolman,  210  Mass.  402,  97  N.  E.  54,  38  L.  R.  A.  (N. 
S.)  882  (1912),  ace.  So,  also,  in  Mason  v.  Horton,  67  Vt.  26G,  31  Atl.  291,  48 
Am.  St.  Rep.  817  (1894);  Johnson  v.  Gould,  GO  W.  Va.-84,  53  S.  E.  798  (1906), 
where  the  severance  was  brought  about  by  partition  among  heirs  of  the  common 
owner. 

In  Maynard  v.  Esher,  17  Pa.  222  (1851),  the  properties  were  sold  separately 
at  the  same  public  sale.  It  appeared  that  the  deed  of  the  quasi  servient  tene- 
ment had  been  made  just  prior  to  the  deed  of  the  quasi  dominant  tenement. 
An  instruction  to  the  jury  tliat  under  such  circumstances  the  conveyances 
should  be  deemed  as  made  simultaneously  was  held  erroneous. 


492  DERIVATIVE  TITLES  (Part  2 

P:laintiff.  In  the  western  wall  of  the  house  retained  by  the  defendant 
there  were  two  windows  overlooking  a  yard  forming  part  of  the  plain- 
tiff's  premises!  Neither  of  the  windows  was  an  ancient  light,  nor  was 
any  right  to  light  in  respect  of  either  of  the  windows  reserved  in  favour 
of  the  defendant  by  the  indenture  of  October  18,  1895. 

The  plaintiff  recently  commenced  to  erect  a  wall  in  her  yard  close 
to  these  windows,  so  as  completely  to  block  the  access  of  light  thereto ; 
but  the  defendant  knocked  down  the  wall  from  his  own  premises,  and 
it  was  again  erected  and  knocked  clown,.  ' 

The  plaintiff  brought  this  action  for  a  declaration  tliat  she  was  en- 
titled to  build  on  her  premises  so  as  to  obstruct  the  light  to  the  two  win- 
dows in  question,  and  for  an  injunction  to  restrain  the  defendant  from 
throwing  down  the  wall,  and  for  damages! 

.  The  defendant  pleaded  that  the  access  of  light  to  these  two  windows 
was  absolutely  necessary  for  the  enjoyment  and  use  for  habitation  jif 
the  part  of  his  house  which  was  lighted  by  these  windows.  Of  these 
two  windows  one  lighted  a  pantry  and  the  other  lighted  a  landing 
immediately  over  the  pantry.  The  evidence  shewed  that  the  landing 
could  be  lighted  by  making  a  skylight  in  tlie  roof,  and  that  the  pantry 
could  be  lighted  by  making  a  window  into  the  scullery  which  adjoined 
the  pantry,  thus  obtaining  a  borrowed  light  through  the  scullery ;  but 
it  was  admitted  in  cross-examination  by  the  plaintiff's  surveyor  that 
the  blocking  up  of  the  existing  window  would  ren der  the  pantry  usele s s 
as_ajDantr}^. 

Kkkewich,  J.  If  a  vendor  of  land  desires  to  reserve  any  right  in 
the  nature  of  an  easement  for  the  benefit  of  his  adjacent  land  which  he 
is  not  parting  with,  he  must  do  it  by  express  words  in  the  deed  of  con- 
veyance. That  is  settled  law,  and  expresses  the  result  of  the  decision 
in  Wheeldon  v.  Burrows,  12  Ch.  D.  31,  where  the  Court  of  Appeal 
affirmed  the  decision  of  Bacon,  V.  C.  That  is  the  general  rule,  but  the 
rule  is  subject  to^certai'i  pyrf^^tion'^  One  of  them  is  the  well-known 
exception  of  an  easement  of  necessity — that  is  to  say,  where  the  en- 
joyment of  the  alleged  right  over  the  adjoining  land  is  necessary  to  the 
property  which  is  not  conveyed,  then  the  Court  will  consider  the  ease- 
ment as  impliedly  reserved,  though  it  has  not  been  reversed  bv  express 
^yords.  Such  easement,  or  right  in  the  character  of  an  easement,  may 
be  a  right  to  the  access  of  light  to  a  particular  window.  In  a  large 
majority  of  cases  a  window  which  lights  a  room  is  deemed  necessary 
to  the  lighting  of  that  room  and  is,  on  the  whole,  essential  to  the  com- 
fortable enjoyment  of  tliat  room,  but  it  does  not  follow  that  the  right 
to  access  of  light  to  that  window  is  an  easement  of  necessity.  Where 
are  you  to  draw  the  line?  Supposing  the  blocking  up  of  tlie  window 
largely  interferes  with  the  comfort  and  enjoyment  of  the  room,  is  the 
grantee  of  the  adjacent  land  entitled  to  block  it  up,  or  does  the  exception 
stand  ?  It  seems  to  me  that  the  line  to  be  drawn  is  pointed  out  by  Stir- 
ling, L.  J.,  in  Union  Lighterage  Co.  v.  London  Graving  Dock  Co., 
[1902]  2  Ch.  557,  572.    His  Lordship  makes  a  distinction  between  an 


Ch.  4)  CREATION   OF   EASEMENTS   BY   IMPLICATION  493  * 

easement  of  necessity  and  an  easement  necessary  to  the  reasonable  en- 
joyment of  property.  After  referring  to  the  two  rules  laid  down  in 
Wheeldon  v.  Burrows,  12  Ch.  D.  31,  49,  and  the  exceptions  thereto  he 
says :  "The  appellants  did  not  dispute  that  there  is  no  express  reserya- 
tion  in  the  conyeyance  to  the  plaintiffs,  but  they  contended  that  the 
easement  claimed  by  the  defendants  is  an  'easement  of  necessity'  with- 
,in  the  recognised  exception  to  the  second  rule.  Now,  in  the  passages 
cited  the  expressions  'ways  of  necessity'  and  'easements  of  necessity'  ' 
are  used  in  contrast  with  the  other  expressions,  'easements  which  are 
necessary  to  the  reasonable  enjoyment  of  the  property  granted,'  and 
'easements  *  *  *  necessary  to  the  reasonable  enjoyment  of  the 
property  conyeyed,'  and  the  word  'necessity'  in  the  former  expressions 
has  plainly  a  narrower  meaning  than  the  word  'necessary'  in  the  latter. 
In  my  opinion  an  easement  of  necessity,  such  as  is  referred  to.  means 
an  easement  without  which  the  property  retained  cannot  be  used  at 
all,  an^noLimfe. ia£i:g|y  riecessao:  to  the  reasonable,  enjoyment  of  that 
property."  Then,  after  pointing  out  that  the  lights  in  Wheeldon  y. 
Burrow57l2  Ch.  D.  31,  49,  were  reasonably  necessary  to  the  enjoy- 
ment of  the  workshop,  he  says :  "So  here  it  may  be  that  the  tierrods 
which  pass  through  the  plaintiffs'  property  are  reasonably  necessary 
to  the  enjoyment  of  the  defendants'  dock  in  its  present  condition ;  but 
the  dock  is  capable  of  use  without  them,  and  I  think  that  there  cannot 
be  implied  any  reservation  in  respect  of  them."  That  seems  to  me  to 
draw  the  distinction  between  what  is  absolutely  necessary  and  what  is 
reasonably  required  for  the  enjoyment  of  the  land  and  building  as  it 
stands.  In  my  judgment  this  is  a  window  to  which  the  access  of  light 
cannot  be  reseryed  by  implication  upon  the  ground  that  the  light  is 
necessary  to  the  pantry.  It  cannot  be  that  there  is  any  necessity  by 
reason  of  its  being  used  as  a  pantry,  since  it  can  be  used  for  other  pur- 
poses. It  cannot  be  said  that  a  special  use  of  light  attaches  to  it  as  a 
pantry,  and  to  say,  as  the  defendant  does,  that  access  of  light  to  that 
window  is  reseryed  to  him  by  necessity  is  giying  to  the  wor4  "neces- 
sity" a  meaning  which  it  does  not  properly  bear  in  this  connection. 

[His  Lordship  made  a  declaration  that  the  plaintiff  was  entitled  to 
build  on  her  hereditaments  in  such  a  manner  as  to  obstruct  the  lights 

-  : .  ■■  '  r^ 

of  the  two  wmdows  m  question.]^ 

8  As  to  the  creation  of  the  easement  of  lisrht  and  air  by  implication  in  the  I  JtC  ^*^  / 
United  States,  see  Kennedy  v.  Burnap,  I2n_rnl.  4.-^^  52  Pac.  843,  40  L.  R.  A.  ' 
476  (1898) ;  Keating  v.  Springer,  146  111.  481,  ?A  N.  E.  805,  22  L.  R.  A.  544,  37 
Am.  St.  Rep.  175  (1893) ;  Keats  v.  Hugo,  115  Mass.  204,  15  Am.  Rep.  80  (1874) ; 
Mullen  V.  Strieker,  19  Ohio  St.  135,  2  Am.  Rep.  379  (1869),  conclyding  that  such 
easement  caiuiot  be  so  created.  Janes  v.  Jenkins,  31  Md.  1,  6  Am.  Rep.  300 
(1871) ;   Greer  v.  Van  Meter,  54  N.  J.  Eq.  270,  33  Ati.  794  (1896),  contra. 

"As  to  light  and  air,  I  am  fx'ee  to  say  that  I  do  not  believe  the  rule,  as  ap- 
Tjlied"  to  our  situatlAl^  and  pirpimmfmipps.  ^  sound  one,  which  holds  that  under 
any  circimistances  this  ripht  can  by  implication  be  burdened  upon  ^w  afl^oin- 
mg  estate,  as  to  preveht  the  MVht^i'  tlKJI'^Of  I'J'OllI  building  upon  or  improving 
il  as  he  pleases.  I  would  reverse  the  rule  and  hold  that  hfi  who  claims  rhnt 
ten,  twenty  or  thirty  feet  adjoining  him  (which  in  cities  may  be  ypry  yfllnnhlpt 
shall  remain  vacant  and  unimproved,  should  found  such  claim  upon  an  express 


494  DERIVATIVE  TITLES  (Part  2 

BRIGHAM  V.  SMITH. 
(Supreme  Judicial  Court  of  Massachusetts,  1S55.     4  Gray  297,  64  Am,  Dec.  76.) 

Action  of  tort  for  trespassing  on  a  close  to  which  the  plaintiff  claim- 
ed title  under  a  deed  of  warranty  from  William  Sherman.  The  de- 
fendant justified  under  a  way  of  necessity  attached  to  adjoining  land, 
belonging,  at  the  time  of  said  deed,  to  Sherman,  from  whom  the  de- 
fendant also  derived  title.  At  the  trial  in  the  court  of  common  pleas, 
it  appeared  that  Sherman,  at  the  time  of  the  first  deed,  retained  no 
other  way  to  his  remaining  lot  except  over  the  land  g^ranted.  But  Per- 
kins, J.,  ruled  that  the  defendant  could  not  justify  under  a  way  of 
necessity  over  land  which  he  had  conveyed  by  deed  of  warranty.  The 
jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant  alleged  ex- 
ceptions. 

Thomas,  J.  If  A.  conveys  land  to  B.,  to  which  B.  can  have  access 
only  by  passing  over  other  land  of  A.,  a  way  of  necessity  passes  by  the 
grant.  If  A.  conveys  land  to  B.,  leaving  other  land  of  A.  to  which  he 
can  have  access  only  by  passing  over  the  land  granted,  a  wayof_neces- 
sity  is  reserved  iiL-lIie-g-pa4rt^  These  points  are  settled,  as  well  in  the 
cases  cited  for  the  plaintiff,  as  those  cited  for  the  defendant. 

Is  the  rule  affected  by  the  fact  that  the  grantor  conveyed  by  deed 
of  warranty  ?  We  think  not.  If  the  way  were  expressly  reserved  in 
the  deed,  the  covenants  must  apply  to  the  premises  granted,  that  isTan 
estate  with  a  right  of  way  reserved  or  carved  out  of  the  fee.~rri  the 
present  case,  the  law  does  for  the  parties  the  same  thing,  and  the  cove- 
nants apply  to  an  estate^  ^^th  this  way  o^  necessity  reserved. 

Exceptions  sustains 


[ate^witn  tnis  way  ot  ne 


grant  or  covenant."  Dillon,  C.  J.,  in  Morrison  v.  Marquardt,  24  Iowa,  35,  60, 
ti2  Am.  Dee.  444  (1S6S) . 

In  Rennyson's  Appeal,  94  Pa.  147,  39  Am.  Rep.  777  (ISSO),  the  court  said  that 
the  easement  of  light  and  air  would  not  arise  by  implication  unless  there  was 
u""real  necessity."  See,  too,  Kohinson  y.  Clapp,  05  Conn,  366,  32  Atl.  939,  29 
L.  R.  A.  582  (1S95) ;   Doyle  y.  Lord,  64  N,  Y,  432,  21  Am.  Rep.  629  (1876), 

In  Manning  y,  N,  J,  Short  Line  R.  R.  Co,,  SO  N,  J,  Law,  349,  78  Atl.  200,  32 
L.  R.  A.  (N.  S.)  155  (1910),  the  plaintiff  in  n  nroceeding  for  an  award  in  con- 
demnation nroceedings  whereby  the  defendant  had  taken  a  strip  of  land  for 
purposes  of  a  right  of  way,  claimed  the  award  should  include  compensation 
for  lateral  support  for  the  right  of  way  burdened  artificially  by  the  railroad 
for  railroad  puriwses,  it  being  contended  that  upon  the  acquisition  of  the  right 
of  way  the  company  acquired  by  implication  an  easement  of  such  lateral  sup- 
port. 

9  "It  is  not  the  necessity  which  creates  the  right  of  wnv.  bnt  ^^^^^jj^^jflfl- 
struction  of  the. acts  of  the  parties!  Jso  necessity  will  justify  an  enBry^upon. 
ano?B?T^nHfTff^ii""a  man  cab'  be  supposed  to  hold  land  without  any  right  of 
access  to  it,  a  grant  of  it  would  not  convey  to  the  grantee  any  right  to  pass 
over  the  adjoining  land,  howeyer  necessary  it  might  be  to  the  enjoyment  of  the 
thing  granted.  He  would  acquire  nothing  more  than  his  grantor  held.  The 
necessities  of  the  parties  would  ada  notnnig  to  It,  uuuon  y,  Tayler,  2  Lutw, 
1487,  But  the  true  principle  is,  that  nothing  will  pass,  as  incident  t.O'  tbf>  grant. 
except  it  be  necessary  to  the  enioyTupni-  of  flip  principal  thing  granted.  fTf^nce 
«-[)P  prrnntpc  r>t  n  r-i^^P  surrounded  by  the  grantor's  land,  is  entitled  only  to  a 
ceuyenient  way  over  the  grantor's  land,  and  will  haye  no  right  to  i>a.ss  oyer  Jjb 


Ch.  4)  CREATION   OF   EASEMENTS   BY   IMPLICATION  495 

DABNEY  V.  CHILD. 

(Supreme  Court  of  Mississippi,  1909.     95  Miss.  585,  48  South.  897.) 

Dabney,  appellant,  was  complainant  in  the  court  below.  Child, 
appellee,  was  defendant  there.  From  a  decree  in  defendant's  favor  the 
complainant  appealed  to  the  supreme  court.  The  facts  are  sufficiently 
stated  in  the  opinion  of  the  court. 


Mayeis,  J.,  delivered  the  opinion  of  the  court 
The  complamSTcmu^^case 


-Lilt  ^^wiiiplamOTt  in  fltis  case  executed  to  Child  a  warrantv  deed  to  l, 
one  acre  of  land  in  section  6,  township   15.  range  5  E..  in  Warren    i^  /"IM^C^xa^ 
county,  and  the  deed  contains  no  reservation  of  any  easement  what- 

wherever  lie  pleases.  He  may  select  a  suitable  route  for  his  way,  but  in  doing 
it  be  must  regard  the  interest  and  cpnvenience  of  the  owner  of  the  laiid,  and 
when  he  has  done  it,  he  will  be  coutiued  to  the  same  way  ana  may  not  change 
its  course  according  to  his  wishes  or  caprice.  Russell  v.  Jackson  (1824)  2  Pick. 
(Mass.)  574;  Jones  v.  Percival  (1827)  5  Pick.  (Mass.)  485  [16  Am.  Dec.  415]. 
Although  generally  a  man  can  acquire,  as  incident  to  a  grant,  only  onp  rJL^ht 
of  way  to  the  same  close,  vet  the  same  nrincinie  of  necessity  which  raises  the 
implication  of  one  may  extend  it  to  two  or  more.  Where  a  man  should  grant 
a  tract  of  land  surroupded  by  his  own,  so  divided  into  parts  by  an  impassable 
mountain,  river  or  other  barrier,  as  that  there  could  be  no  passing  from  one 
part  to  the  other,  he  would  by  necessary  implication  convey  a  right  of  way  to 
each  separate  part,  because  without  this  some  portion  of  the  thing  granted 
would  be  entirely  useless  to  the  grantee.  P.ut  these  implications  of  grants  are 
looked  upon  with  jealousy  and  construed  with  strict  ness.  It  is  only  the  neces- 
sity of  the  ca.se  which  will  carry  one  way  ;  and  certainly  the  necessity  must 
be  not  less  strong  to  carry  two.  It  is  not  pretended  that  the  bluff  across  the 
defendants'  land  is  impassable;  but  only  tbat  it  is  'exceedingly  difhcult  to 
pass  it,  and  that  it  would  be  much  more  convenient  to  the  defendants  to  pass'  over 
the  plaintiff's  land.  Here  is  no  such  necessity  as  will  raise  an  implication  of 
a  grant  of  different  ways  from  dilferent  parts  of  the  defendant's  lot.  Con- 
venience, even  great  convenience  is  not  suthcient.  If  the  defendants,  when  they 
purchased,  had  desired  a  separate  way  for  this  small  section  of  their  lot,  they 
should  have  stipulated  for  it  and  had  it  expressly  inserted  in  their  deed."  Mor- 
ton, J.,  in  Nichols  v.  Luce,  24  Pick.  (Mass.)  104,  105,  35  Am.  Dec.  302  (1834). 

In  Pettingill  v.  Porter,  8  Allen  (Mass.)  1,  85  Am.  Dec.  671  (1864),  there  had 
been  an  instiniction  as  follows:  "The  deed  under  which  the  plaintiff  claimed 
conveyed  whatever  was  necessary  to  the  beneficial  enjoyment  of  the  estate 
granted,  and  in  the  power  of  the  grantor  to  convey ;  that  it  was  not  enough 
fry  thp  pliiinfifT  <-»»  piT»vc>  thni  tlip  wny  claimed  would  be  convenient  and  beue- 
ticial.  but  she  must  also  prove  that  no  other  way  could  be  conveniently  maae 
from  the  highway  to  her  intestntp's  linupe,  without  unreasonable  Itibor  and 
expense;  that  unreasonable  labor  and  expense  means  excessive  and  dispropor- 
tionate to  the  value  of  the  property  purchased ;  and  that  it  was  a  question 
for  the  jui'y.  on  all  the  evidence,  whether  such  new"  way  could  be  made  with- 
out such  unreasonable  labor  and  exnenseT"  Held  a  correct  instructiom  To 
same  effect  is  Crotty  v.  New  River  &  Pocahontas  Oonsol.  Coal  Co.,  72  W.  Va. 
68,  78  S.  E.  233,  46  L.  R.  A.  (N.  S.)  156  (1913). 

In  Hildreth  v.  Googins,  91  Me.  227,  39  Atl.  550  (1898),  where  in  order  to  get 
to  the  land  as  incident  to  which  the  way  of  necessity  was  claimed  it  was  neces- 
sary to  go  either  over  other  lands  of  the  grantor  or  over  a  portion  of  the  ocean, 
it  was  held,  there  being  no  evidence  offered  as  to  the  unnvailnhilitY  nf  the  ocean 
as  a  hLghway^ang  means  or  access,  that  there  w^as  no  w^ay  of  necessit.v  oy^r 
the  grantor  s  otner  lands.  See,  also,  Staples  v.  Cornwall,  99  N.  Y.  isupp.  1009 
(1906):  ~ 

As  to  w'ays  of  necessity  where  there  are  other  possible  means  of  access,  see, 
generally,  Corea  v.  Higuera,  153  Cal.  451,  95  Pac.  882,  17  L.  R.  A.  (N.  S.)  1018 
(1908).  '■^— 


/^^  iia^.  ^i  / 


^ 


«^.. 


s.-^ 


DERIVATIVE   TITLES  (Part  2 

ever.  The  object  of  this  suit  is  to  have  the  court  declare  that  when  this 
conveyance  was  made  there  was  an  implied  reservation  in  the  deed  that 
complainant  should  have  a  right  of  way  to  his  own  premises  over  the 
land  conveyed^  on  tlie  idea  that  it  is  a  wav  of  necessity. 

The  complainant  has  not  brought  himself  within  that  rule  of  law 
which  would  warrant  the  court  in  declaring  that  there  was  any  way  of 
necessity  reserved  by  implication  in  the  deed,  since  the  bill  itself  shows 
that  the  way  sought  to  be  established  is  no  more  than  a  way  of  con- 
venience, and  in  no  sense  one  of  necessity,  since  Child  has  already 
given  him  another  way  by  which  he  has  free  access  to  and  from  his 
premises.  One  of  the  charges  in  the  bill  is  that  complainant  is  al- 
lowed "to  pass  to  and  from  his  land  over  land  belonging  to  Child 
north  of  the  one  acre,  but  that  this  is  by  sufferance  of  said  Child,  and 
which,  it  avers,  the  complainant  has  no  right  to,  but  enjoys  merely 
at  defendant's  will,  and  alleges  that  he  has  a  right  of  way  over  the 
strip,  which  Child  denies,  and  refuses  to  allow  him  to  cross  for  this 
purpose,  and  that  he  seeks  herein  to  have  this  court  decree  him  this 
right."  It  is  thus  seen  that  the  complainant  already  has  a  way_,of 
necessity  open  to  him,  over  which  he  may  go  to  the  very  land  in  ques- 
tion, and  there  can  exist  no  rig-ht  to  claim  another  and  ditferent  way 
as  a  way  of  necessity,  even  though  the  route  now  used  may  be  at  ihe 
sufferance  of  Child.  If  the  appellant  desires  a  private  and  permanent 
right  of  way.  Code  1906,  §  4411,  provides  an  adequate  remedy  whereby 
.  he  may  have  a  private  way  laid  out. 

In  11  Cyc.  p.  1171,  a  clear  statement  of  the  law  in  regard  to  implied 
reservations  in  deeds  is  made,  supported  by  a  great  many  authorities, 
and  we  quote  the  statement  with  approval.     It  is  there  said:    "If  the 
grantor  intends  to  reserve  any  right  over  the  tenement  granted,  it  is 
his  duty  to  reserve  it  expressly  in  the  grant.     To  say  that  a  grantor 
reserves  to  himself  in  entirety  that  which  may  be  beneficial  to  him, 
but  which  may  be  most  injurious  to  his  grantee,  is  quite  contrary  to 
the  principle  upon,  which  an  implied  grant  depends,  which  is  that  a 
•'  grantor  shall  not  derogate  from  or  render  less  effectual  his  grant,  or 
-J»        render  that  which  he  has  granted  less  beneficial  to  his  grantee.     Ac- 
•  j^Jr"  cordinglv.  where  there  is  a  grant  of  land,  with  full  covenants  of  war- 
ranty, without  express  reservation  of  easements^  the  best-considered 


r^jjr  jf^-  cases  hold  that  there  can  be  no  reservation  by  implication,  unless  the 
*jky  \a  ^  easement  is  strictly  one  of  necessity ;  for  the  operation  of  a  plain 
^  ^  '  grant,  not  pretended  to  be  otherwise  than  in  conformity  with  the  con- 

^^  Hti/\'  tract  between  the  parties,  ought  not  to  be  limited  and  cut  down  by  the 

jy^\  fiction  of  an  implied  reservation. 

^A*^  We  do  not  think  that  the  case  of  Pleas  v.  Thomas,  75  Miss.  495, 

22  South.  820,  is  at  all  in  point  under  the  facts  of  this  case.  In  the 
case  just  referred  to  the  way  claimed  was  one  of  necessity,  well  marked 
out,  and  had  been  in  use  for  a  considerable  space  of  time.  Not  so 
here.  The  way  is  not  one  of  necessitv.  and  it  is  not  shown  that  it  was 
ever  in  use  as  a  right  of  way.     The  court  said  in  Pleas  v.  Thomas: 


Ct-ut 


^  yOw-tfkXv.*^  ./VX/|-C-nyvr»-fcMS^ 


Ch.  4)  CREATION   OF   EASEMENTS   BY    IMPLICATION  497 

"The  principles  of  law  governing  the  case  are  not  doubtful,  but  their 
application  to  peculiar  facts  is  difficult  and  delicate."  We  repeat  the 
same  here ;  but  we  do  not  think  that  appellant  has  shown  any  such 
facts  as  would  authorize  us  to  declare  that  there  is  an  implied  reser- 
vation of  a  way  gf  necessity  in  the  deed  of  conveyance,  when  no 
necessity  exists.  /Implied  reservations,  as  against  the  express  cove- 
nants of  a  deed,  are  not  favored  by  the  courts,  and  are  to  be  limited  to 
ways  of  strict  necessity. /The  fact  that  the  land  was  practically  given 
to  Child  by  Dabney  irfno  way  alters  the  principle.^" 


SEIBERT  V.  LEVAN. 

(Supreme  Court  of  rennsylvania,  18-48.     8  Pa.  383,  49  Am.  Dec.  525.) 

In  error  from  the  Common  Pleas  of  Berks  county. 

The  facts  of  this  case  are  fully  set  forth  in  the  charge  of  the  court 
below;  and,  as  no  other  exceptions  were  argued  in  this  court,  either 
upon  the  argument  in  1847,  or  upon  the  reargument  in  1848,  but  those 
taken  to  the  charge,  it  will  be  sufficient  to  present  the  case  to  the  pro- 
fession, as  it  was  presented  to  this  court  by  the  court  below.  Upon  the 
trial  there,  Jones,  P.  J.,  charged  the  jury  as  follows : 

"This  is  an  action  on  the  case.for  obstructing  a  certain  race  through 
which  the  water  flowed  to  the  plaintiff's  clover-mill. 

"In  1830,  George  D.  B.  Keim  was  seised  of  a  tract  of  land  in  this 
county  through  which  flowed  a  stream  of  water,  formed  by  the  conflu- 
ence of  springs  arising  on  the  land,  and  of  a  stream  of  water  flowing 
into  it  from  land  situated  above  it.  The  stream  thus  formed,  flowed 
in  its  natural  rliannel,  tlrmiip-h  the  lower  part  of  the  meadow  on  Keim's 
land,  into  the  tract  below,  and  was  used  by  him  at  the  proper  season 
'  o^  the  year  for  the  purpose  of  irrigating  the  meadow,  by  means  of  a 
ditch  on  the  higher  part  nf  the,  men  now,  nnd  so  much  of  it  as  was 
not  consumed,  flowed  back  again  into  the  natural  channel,  by  which 
it  entered  the  farm  adjoining  below,  the  property  of  John  Esterly. 

10  Land  was  lenspfl  nnri  together  therewith  a  right  of  way  over  other  lands 
of  the  lessor.  Under  its  powers  of  eminent  domain  a  railroad  comi)anj'  erected 
an  embankment  across  the  lessee's  right  of  way  in  such  manner  as  to  make  im- 
possible the  further  use  of  said  way.  The  lessee  had  no  other  means  of  access 
nnlpss  lip  bad  ^  right  to  pass  nvt^v  tliP  nthpr  lnT]:ds  of  his  lessor  in  some  other 
lUie,.  Did  he  have  such  right?  See  Cornell-Andrews  Smelting  Co.  v.  Boston 
&  P.  E.  Corp.,  202  Mass.  585~  89  N.  E.  118  (1900). 

A  strip  of  land  cuffing  across  the  grantor's  farm  was  conveyed  in  fee  to  a 
railroad  company,  with  no  rcservijfion.  except,  as  a  part  of  the  consideration. 
tnat  the  grantee  should  make  a  good  crossing  or  roadway.  Gas  was  later  dis- 
covered  on  the  part  of  the  farm  separated  from  the  grantor's  house  by  the 
railroad.  Tl;e  grantor  claimed  tbe  right  to  put  in  a  pipe  line  leading  from  the 
^^ells  througnThe  right  of  way  to  the  house.  The  company  objected,  on  the 
ground  that  pueh  rigbt  was  not  included  in  the  reservation,  is  there  any 
ground  upon  which  the  right  so  to  locate  the  pipe  line  may  be  supported?  See 
Uhl  V.  Ohio  River  R.  Co.,  47  W.  Va.  59,  34  S.  E.  934  (1899). 
Aig.Prop.— 32 


.^ 


498 


DERIVATIVE   TITLES 


(Part  2 


^^>C^' 


j:i^ 


w<) 


?/(»A«3^ 


"By  his  deed  of  the  23d  ]\Iarch,   1830,   Tohn  Esterly  conveyed  to 
Keim,  in  fee,  the  said  farm  adjoining  him  below,  containing  about  tw o 
hundred  acres.    Keim,  having  thus  become  the  owner  of  both  farms,  in 
A  the  same  year  erected  on  the  lower  farm  a  mill  for  cleaning  clover- 
yc>t^^L,  ^"y^^^**^    seed,  &c.,  and  for  the  purpose  of  supplving  this  mill  with  water,  con- 
^  structed  a  long  ditch  or  race,  principallv  on  the  upper  fann.  with  a 

A^  ^^^8-t/»»«^      pond  or  dani  near  the  mill  (which  pond  was  also  on  the  upper  farm), 
'  through  which  the  water  of  the  stream  before  mentioned  was  con- 

ducted out  of  its  natural  channel  for  the  purposes  of  the  mill  at 
^such  times  as  it  was  thought  necessary  to  put  the  mill  in  operation. 
C  "On  the  31st  December,  1841,  Keim  conveved  that  tracL-QJ  1?md, 
on  which  the  race  and  dam  were,  to  Messrs.  IMuhfehburg  &  Schwartz, 
whose  deed  was  recorded  on  the  9th  April  following.  On  the  6th  Au- 
"'  gust,  1842,  Keim  mortgaged  that  tract  of  land  on  which"  the  mill  was, 
to  Jacob  Bechtel  and" others.  On  the  22d  October,  1842,  Muhlenberg  & 
Schwartz,  entered  into  articles  of  agreement  with  the  defendants, 
acting  as  the  agents  of  their  mother ;  whereby  they  covenanted  J:o 
convey  to  her  a  certain  portion  of  the  tract  purchased  by  them  of  Keim, 
on  which  portion  were  the  race  and  dam  in  question ;  and,  in  pursuance 
of  those  articles,  they  executed  their  deed-  to  her  on  the  29th  April, 
1843.  By  virtue  of  a  levari_faaas^  on  a  judgment  confessed  by  Keim 
upon  the  scire  facias  issued  on  the  mortgage  given  bv  him  to  Bechtel 
and  others,  that  tract  still  held  by  Keim,  and  on  whirh  wa«;  the  ml]] 
w^as  sold  by  the  sheriff  to  the  plaintiff,  who  received  the  sheriff's  deed 
therefor,  on  5th  November,  1844. 

' ' In  neither  of  those  deeds  to  Muhlenberg  &  Schwartz,  or  jrom 
them,  is  a;^y  mention  whatever  made  of  this  race  and  dam :  noris 
there  ^ny  reservation  to  Keim_and  his  heirs  or  assigns  of  any  right 
whatever  to  have  the  water  flow  through  that  race  to  the  mill,  or  to 
enter  upon  the  land  now  of  the  Levans,  for  the  purpose  of  repairing-, 
cleaning,  or  doing  anything  else  to  this  race  and  dam.  By  the  first  of 
those  deeds,  the  land  passed  absolutely,  and  ivithoiU  any  restriction  or 
reservation  whatever  in  favour  of  Keim,  to  his  grantees,  who  ac- 
quired the  most  entire  and  perfect  dominion  over  iL  the  largest  and 
most  comprehensive  known  to  our  lazt's.  Whatever  may  have  been 
the  relations  and  understanding  between  Keim  and  his  immediate 
grantees,  zvith  regard  to  this  land,  Mrs.  Levan,  in  purchasing  of  them, 
zvas  not  required  to  go  further  than  their  recorded  deed  in  fee:  which 
was  equally  notice  to  Keim's  mortgagees  of  the  lower  tract,  and  to  the 
purchasers  from  Keim's  grantees  of  the  upper  tract,  of  the  extent  of 
the  rights  of  these  last.  Thai  deed  reserving  no  right  to  this  race — > 
no  right  to  have  the  waters  Uoiv  through  it  to  the  mill — no  such  right 
remained  in  Keim.  or  in  those  claiming  under  him,  by  any  subscouent 
conveyance  or  encumbrance  of  thnf.  Imvpr  trnrt  Mrs.  Levan  took  the 
upper  tract  from  Muhlenberg.  &  Sclm'arta,  as  their  deed  conz'eyed  it 
to  them,  as  fully  and  as  amply,  as  free  and  as  exempt  from  all  reserva- 
tions in  favour  of  the  owner  of  the  lozver  tract,  as  they  had  held  it: 


u<i<:^k^^' 


Ch.  4)  CREATION   OF   EASEMENTS  BY 


IMPLICATIOlS  499 


and  consequently  she  had  a  right  to  £11  up  that  race,  or  divert  its  7va- 
ters,  at  her  own  mere  will  and  pleasure;  and  for  the  doing  of  this,  no 
action  can  he  maintained  against  her,  or  those  claiming  under  her. 

"The  plaintiff  has  submitted  to  us  six  points,  agreeably  to  which, 
we  gj:e  requested  to  charge  you.  We  will  take  them  up  in  their  order : 
/  "lyAt  is  true  that  the  rights  of  the  plaintiff,  who  purchased  at  sher- 

"-tffs  sale,  under  the  mortgage  by  Keim  to  Bechtel  and  others,  are  jh  e 
same  as  those  of  Keim,  on  the  6th  of  August,  1842,  which  was  the 
date  of  the  mortgage.  Whatever  right,  title,  or  interest,  Keim  had  in 
the  lower  tract  on  that  day,  was  bound  by  this  mortgage,  which  became 
the  measure  of  the  right,  title,  and  interest  of  the  sheriff's  vendee, 
under  pr?)ceedings  upon  it.  If  Keim  had  then  a  right  to  the  flow  of 
v^ater  through  that  race,  as  appurtenant  to  the  mill,  or  by  virtue,  of 
any  previous  reservation  or  grant,  such  right  would,  we  take  it,  have 
been  bound  by  the  mortgage,  and  would  have  passed  to  the  sheriff's 
vendee  of  the  mortgaged  premises.  But,  before  that  day,  Keim  had 
conveyed  the  upper  tract,  on  which  were  the  race  and  dam,  in  fee, 
without  any  reservation  of  such  right,  and  on  that  day  he  had  no  such 
right  that  he  could  bind  by  inorTQUqe.  he  Had  no  nqlit  to  the  fiowincf 
of  the  water  in  that  race;  norTqlit  to  enter  upon  that  upper  tract  to 
clean  or  repair  the  race,  or  for  any  purpose  whatever,  save  only  by 
the  s}tff^rance  of  Muhlenberg  and  Schwartz. 

y2y^\iQ  plaintiff  i'^  not  pntitlprl  tp  recover  under  the  sheriff's  deed, 
and  that  whether  the  defendants  did  or  did  not  give  notice,  as  they 
allege :  The  right  in  this  case  does  not  in  any  manner  depend  upon  the 
fact  of  the  defendants  having  given  notice  at  the  sheriff's  sale,  that 
they-ei^imed  this  race. 

/[Z.yllo'^^vtr  necessary  and  incident  to  this  mill,  this  race  rnay  be, 
and  notwithstanding  it  was  occupied  EyThe  servants  or  tenants  of  Keim, 
and  by  the  plaintiff,  for  fifteen  years  before  suit  brought,  still,  if 
Keim  conveyed  away  the  land,  on  which  it  is,  in  fee,  when  he  had  a 
rio-ht  to  do  so.  and  made  ^o  reserypfi^n  -^f  it,  all  right  to  the  easement 
here^claimed  was  lost  by  him  and  by  those  claiming  it  under  him. 
3^^/The  mortgage  and  sheriff's  deed  given  in  evidence,  do  not  con- 

vf^ tXie  race  in  controversy  as  incident  and  appurtenant  to  the  mill.  If 
Keim  had  mortgaged  the  lower  tract  on  which  the  mill  is,  before  he 
conveyed  the  upper  tract  in  fee,  that  might  alter  the  case.  But  he 
could  not  have  claimed  incidents  or  appurtenances  to  his  own  land, 
in  land  by  him  conveyed  to  another  in  fee,  without  having  reserved 
them  in  his  deed  tn  that  other. 

"The  cases  of  ways  of  necessity,  cited  from  Cro.  Jac.  170,  and  2 
Lutwyche,  1487,  held  to  exist  in  favour  of  grantors,  are  of  doubtful 
authority.  The  necessity  here  is  self-created,  and  such  a  necessity 
could  not  be,  in  the  words  of  Sergeant  Williams,  either  in  law  or  rea- 
son any  justification  of  a  trespass  committed  on  another's  lands ; 
Pomf ret  v.  Pycraf t,  2  Wms.  Saund.  323,  n.  6 ;  and  if  it  could  not  afford 


500  DERIVATIVE  TITLES  (Part  2 

a  justification  for  a  trespass,  supposing  Seibert  to  be  a  defendant  here, 
of  course  it  can  aftord  him  no  foundation  for  a  right  to  recover,  being 
a  phrifTtiff. 

y^5^^J<iuh\enherg  and  Schwartz's  consent  to  Keim  and  his  tenants 
iTgmg  the  danTahd  race  atter  his  deed  to  them  and  up  to  the  date  of 
hb  mortgage  to  Bechtel  and  others,  as  Keim  had  nrcnpipH  anH  nc(pH 
it  before  his  deed  to  Muhlenberg  and  Schwartz,  does  not  entitle  the 
plaintiff  to  recover.  They  might  have  permitted  this  use  or  not,  as 
they  pleased ;  it  might  have  been  even  an  adverse  use^^but  whether 
permissive  or  adverse,  it  can  give  no  right  as  against  the  JLe^ans. 
ITiey  are  not  bound  bv  the  mere  permission,  express  or  implied,  of 
Muhlenberg  and  Schwartz,  nor  are  they  bound  by  any  adverse  use 
short  of  twentv20ne_y£ars,— The  moment  the  Levans  came  in  they  had 
a  right  to  do  with  this  land,  whereon  the  race  and  dam  are,  what  they 
pleasp4v 
y^'^6>xWe_cannot  say,  that,  under  all  the  circumstances  in  thij^case.  the 
law  will  imply  a  reservation  ot  the  right  to  the  race  by  Keim  when  hv^ 
conveyed  to  Muhlenberg  and  Schwartz.  We  cannot  distinguish  this 
case  in  principle  from  CoUam  v.  Hocker,  1  Rawle,  108.  And  having 
that  as  a  rule  laid  down  to  us  by  the  highest  tribunal  in.  the  state,  it  is 
our  and  your  duty  to  conform  implicitly  to  its  authority. 

'" Your  verdict  should  he  for  the  defendan ts." 

Verdict  and  judgment  for  defendants,  whereupon  this  writ  of  error 
was  sued  out,  and  in  this  court  those  parts  of  the  charge  printed  in 
italics,  as  well  as  the  afiswers  to  the  second  and  subsequent  points  of 
the  plaintiff,  were  assigned  for  error. 

Gibson,  C.  J.  \Ve  have  before  us  a  case  in  which  the  proprietor 
of  two  adjoining  tracts  of  land,  through  which  ran  a  water-course  to 
his  mill  on  the  lower  one,  part  of  which  was  the  natural  bed  of  a  small 
stream,  and  part  of  it  a  trench  from  a  neighbouring  creek,  conveyed 
tliejipper  tract  expressly;^  without  reserving  the  water-right,'^ to  a  party 
w ho  has  obstructed  the  trench  and  cut  off  the  supply  o f  water  from__tbe 
creek.  Such  a  watercourse  is  analogous  to  a  way  of  necessity,  which 
is  not  extinguished  by  unity  of  seisin,  the  only  difference  being  that  in 
the  latter  the  right  has  not  been  created  during  the  unity,  but  existed 
antecedently  to  it.  But  the  time,  not  of  creating  the  right,  but  of  part- 
ing with  the  land  to  which  it  was  attached,  is  the  material  circumstance. 
When  the  owner  of  a  way  sells  the  land  through  which  it  leads  to  a 
market,  or  a  ville,  or  a  church,  he  retains  the  way  without  an  express 
reservation  of  it.;  and  why?  Because,  as  appears  in  Jordan  v.  At- 
wood,  Owen,  121,  and  the  several  cases  collected  in  Woolrych  on  Ways, 
71,  the  law  presumes  he  wQilld  not  have  parted  with  a  part  of  the  prop- 
erty to  the  ruin  of  the  rest  of  it;  and  the  presumption  is  practically 
founded  in  ju'^tire  ^fid  truth.  Is  not  a  water-course  as  necessary  to  a 
mill  as  a  way  is  to  a  ville  or  a  church?  Yet  when  the  land  is  sold,  the 
easement  is  retained  on  the  principle  of  implied  reservati9n^  A  right 


Ch.  4)  CREATION   OF  EASEMENTS  BY  IMPLICATION  501 

of  way  and  a  rjo-ht  of  water-course^beiiig  alike  subject  to  the  general 
law  of  easements,  are  not  distinguishable  from  each  other  in  any  es- 
sential  particular.  But  we  are  not  driven  to  analogies  from  association, 
however  intimate;  for  it  will  be  seen  that  there  are  several  decisions, 
in  cases  of  water-right,  directly  on  the  point  before  us.  '''^ 

The  three  principal  ones  adduced  on  the  part  of  the  defendant  are 
Burr  v.  Mills,  21  Wend.  (N.  Y.)  292;  Preble  v.  Reed,  17  Me.  (5  Shep.) 
175 ;  and  Hayes  v.  Bowman,  1  Rand.  (Va.)  420.  In  the  first  of  them, 
a  small  part  of  the  tract  above,  which  was  sold  by  the  owner  of  the 
mill,  was  covered  by  the  pool  of  the  dam;  and  in  an  action  for  the 
damage,  Mr.  Justice  Cowen,  delivering  the  opinion  of  the  court,  said : 
"It  can  make  no  difference  that  there  was  then  a  dam  built  which 
flowed  this  land.  If  a  man  convey  land  which  is  covered  with  his  rmjlH 
pond,  without  any  reservation,  he  loses  his  right  to  flow  it.  There  is| 
no  room  for  inTpli_e_d  reservation.  A  man  makes  a  lane  across  one  farm 
to  another,  which  he  is  accustomed  to  use  as  a  way;  he  then  conveys 
tlie  former,  without  (expressly)  reserving  a  right  of  way ;  it  is  clearly 
gone,  /^man  cannot,  after  he  has  absolutely  conveyed  away  his  land,  u^  y  AAAJA^ 
rstilTretain  the  use  of  it  for  any  purpose,^  without  an  express  res_^rva- 
Vtion.  The  flowing,  or  the  way,  is  but  a  mode  of  use;  and  a  grantor -^'''Mp'*-*''*'^*~W 
might  as  well  claim  to  plough  and  crop  his  land."  An  argument,  by  an  ^  •  v 
analogy,  to  a  right  of  water-course  from  a  right  of  way,  which,  we 
have  seen,  may  be  retained  without  being  expressly  reserved,  is  merely 
a  petitio  principii ;  and  the  doctrine  of  the  entire  paragraph,  being  as 
applicable  to  natural  as  to  artificial  water-courses,  would  justify  the 
filling  up  of  a  natural  pond,  used  as  a  reservoir;  which  is  surely  not 
the  law.  Nor  does  the  claim  of  a  water-course  of  necessity  bear  any 
resemblance- to  a  claim  to  plough  and  crop  another's  land,  which  would 
merely  be  an  idle  and  extravagant  pretension.  He  admitted  that  the 
land  would  have  remained  subject  to  the  easement,  had  the  owner  of  it 
retained  it  and  sold  the  mill ;  for  which  distinction,  he  cited  Nicholas 
V.  Chamberlain,  Cro.  Jac.  121 ;  which  clearly  proves  the  particular 
position,  but  as  clearly  disproves  his  conclusion  from  it,  as  well  as  the 
whole  doctrine  predicated  by  him ;  for  it  was  held  by  all  the  court, 
"that  if  one  erects  a  house  and  builds  a  conduit  thereto  in  another  pact 
of  his  land,  and  conveys  water  by  pipes  to  the  house,  and  afterwards 
sells  the  house,  with  the  appurtenances,  or  sells  the  land  to  another, 
reserving  to  himself  the  house,  the  conduit  and  pipes  pass  with  the 
house."  As  the  reservation  of  the  house  is  not  an  express  reservation 
of  the  pipes,  it  must  be  an  implied  one ;  and  as  we  have  seen  that  a 
vendee  may  set  up  an  implied  grant  of  a  thing  lying  out  of  the  limits 
of  his  conveyance,  on  the  ground  of  necessity,  w.e  may  infer  that  a 
vendor  may,  on  the  same  ground,  set  up  an  implied  reservation  of 
something  within  them. 

It  is  not  by  force  of  the  word  appurtenances  that  a  water-course,  like 
the  present,  would  pass  by  the  grant  of  a  mill,  but  by  force  of  the 


502  DERIVATIVE  TITLES  (Part  2 

principle  that  the  grant  of  a  thing  includes  all  the  means  in  the  gran- 
tor's  power  to  attain  it ;  for  the  means  shall  pass  inclusive  without  the 
words  "cum  pertinentiis,"  or  words  equivalent  to  them :  Touchstone, 
89.  The  grant  of  the  means,  therefore,  is  an  implied  one,  for  it  is  cer- 
tainly not  expressed ;  and  there  is  no  imaginable  reason  why  there 
should  not  be  an  implied  reservation  where  the  land  is  sold  and  the  mill 
is  retained.  But  to  return  to  the  defendant's  cases.  The  second  of 
them,  Preble  v.  Reed,  is  a  decision  of  the  same  stamp,  in  which  the 
same  doctrine  is  asserted  without  a  reason  or  an  authority  given  for  it, 
excepting  an  instruction  reported  to  have  been  given  on  a  supposed 
state  of  facts  in  Hathorn  v.  Stinson,  10  Me.  (1  Fairf.)  224,  25  Am. 
Dec.  228,  which  seems,  it  was  said,  to  have  met  the  approbation  of  the 
whole  court.  In  the  third  of  them,  Hayes  v.  Bowman,  it  was  barely 
held  that  a  man  who  had  granted  a  part  of  his  land  divided  from  the 
rest  of  it  by  a  river,  and  expressly  to  the  middle  of  the  stream,  had  not 
a  right  to  erect  a  dam  from  shore  to  shore  for  the  better  enjoyment  of 
his  mill-seat;  but  the  court  did  not  determine  what  would  have  been 
the  law  of  the  case  had  a  dam  been  erected  before  the  land  was  sold. 
The  decision  is  a  sound  one,  but  it  does  not  touch  the  point  before  us. 
The  preceding  cases  make  up  the  sum  of  what  has  been  adduced  as 
authority  for  the  defendant;  and  we  will  now  turn  to  the  authorities 
on  the  part  of  the  plaintiff.  Besides  Nicholas  v.  Chamberlain,  which 
is  full  to  the  point,  we  have  Sury  v.  Pigott,  Palmer,  444,  more  fully 
reported  in  Popham,  166,  and  more  intelligibly  stated  in  Nov,  184.  It 
seems  from  the  last,  that  the  case  was  this :  A.,  seised  of  Whiteacre, 
with  a  house,  curtilage,and  hop-yard  through  which  ran  a  stream  to  a 
pond  in  the  curtilage  for  watering  cattle,  enfeoffed  P.,  oi  the  hop-yard 
above,  and  leased  tlie  house  and  curtilage  to  S.  P.  stopped  the  stream  ; 
and  S.  brought  an  action  on  the  case  for  it;  and  the  court  held  that 
the  right  of  water-course  had  not  been  extinguished  bv  the,  unity  of 
seism.  Yet  there,  as  here,  the  defendant  obtained  title  to  the  ground 
above  by  the  earlier  grant.  It  was  said  by  Dodderidge,  that  if  "a 
man  having  a  mill  and  water-course  over  his  land,  sells  a  portion""of 
the  land  over  which  the  water-course  runs ;  in  such  case,  by  necessity^ 
the  water-course  remaineth  to  the  vendor,  and  the  vendee  cannot  stop 
it;!!  and  Crew,  Chiet  Justice,  said  that  it  had  been  adjudged  accord- 
ingly in  Day  and  Drake's  Case,  3  Jac.  1,  in  the  King's  Bench.  The 
opinion  of  Chief  Justice  Popham  in  Lady  Brown's  case  was  also  cited 
by  him,  in  which  it  was  held  that  if  one  "hath  a  stream  of  water  which 
runneth  in  a  leaden  pipe,  and  he  buys  the  land  where  the  pipe  is,  and 
he  cuts  the  pipe  and  destroys  it,  the  water-course  is  extinct  because  he 
thereby  declares  his  intention  and  purpose  that  he  does  not  wish  to 
enjoy  them  together";  the  inference  from  which  is,  that  if  he  had 
sold  the  land  without  cutting  the  pipes,  the  easement  would  have  re- 
mained, and  he  instanced  the  case  of  a  dve-house  with  water  running 
to  it,  in  which  it  was  held  that  a  purchase  and  subsequent  sale  of  the 


Ch.  4)  CREATION   OF   EASEMENTS   BY   IMPLICATION  503 

land  on  which  the  water  was  current,  by  the  owner  of  the  dye-house, 
did  not  extinp^uish  the  easement. 

These  are  ancient  cases,  but  they  seem  to  have  been  deeply  consider- 
ed, and  founded  in  the  soundest  ma>:ims  of  tlie  laws.  It  is  admitted 
that  the  owner  of  adjoining  tracts  traversed  by  a  natural  water-course, 
is  as  much  entitled  to  the  use  of  the  water,  having  sold  the  upper  one 
as  if  he  had  not  owned  it.  The  vendee  would  be  entitled  to  a  reason- 
able use  of  it,  returning  it,  when  it  had  served  his  purpose,  to  its  for- 
mer channel,  so  as  to  make  it  enter  the  tract  below  at  the  point  where 
it  entered  it  at  the  time  of  the  sale ;  and  what  difference  could  there  be, 
whether  the  channel  to  lead  it  to  that  point  were  made  by  water  or 
by  the  hand  of  man  ?  There  is  no  particular  charm  in  a  gully  cut  by 
natural  agents.  While  the  grantor  was  lord  of  the  whole,  he  might 
assign  a  permanent  channel  to  the  stream,  and  as  regards  himself  or 
those  to  claim  under  him,  impress  it  with  any  character  he  should  see 
proper.  There  is  no  peculiar  sanctity  in  the  natural  bed  of  a  stream, 
which  is  perpetually  changing  its  course  from  accidental  causes.  Had 
the  connexion  with  the  natural  water-course  leading  from  the  springs 
to  the  mill,  been  made  by  a  flood  tearing  its  way  through  the  bank  of 
the  creek,  it  would  not  have  been  pretended  that  the  grantee,  having 
purchased  with  the  fact  before  his  eyes,  would  have  been  at  liberty  to 
destroy  it.  But  that  it  would  have  been  entitled  to  no  consideration  as  a 
dispensation  of  Providence,  is  shown  by  the  undoubted  right  he  would 
have  to  mend  a  breach  made  after  his  purchase.  It  is  true  the  rule  is, 
that  water  shall  flow  ubi  currere  solebat  et  consuevit ;  but  that  regards 
the  duty  of  returning  it,  and  not  the  nature  of  the  channel.  It  was 
said  by  Dodderidge,  in  Sury  v.  Pigott,  that  as  water  descends  it  is  al- 
ways current,  et  aut  invenit  aut  facit  viam ;  and  he  asked,  "Shall  such 
a  thing  be  extinguished  which  hath  its  being  from  creation  ?"  And 
Crew  said.  "A  water-course  is  a  thing  natural,  and  therefore  by  unity 
it  shall  not  be  discharged,"  but  that  these  things  were  said  of  the  ele- 
ment without  reference  to  the  nature  of  its  channel,  is  evident  from 
Nicholas  v.  Chamberlain,  and  Lady  Brown's  case,  in  which  the  ease- 
ment was  not  lost  though  the  water  was  conveyed  through  leaden  pipes. 
The  sum  of  the  matter  in  regard  to  disposition  by  the  act  of  an  owner 
of  two  tenements,  is  thus  condensed  in  Gale  and  Whatley's  Law 
of  Easements,  52 :  "It  is  true  that,  strictly  speaking,  a  man  cannot 
subject  one  part  of  his  property  to  another  by  an  easement  for  no 
man  can  have  an  easement  in  his  own  property,  but  he  obtains  the  same 
object  by  the  exercise  of  another  right,  tjte  general  right  of  property; 
but  he  has  not  the  less  thereby  altered  the  quality  of  the  two  parts  of 
his  heritage ;  and  if,  after  the  annexation  of  peculiar  qualities,  he  alien 
one  part  of  his  heritage,  it  seems  but  reasonable,  if  the  alterations  thus 
made  are  palpable  and  manifest,  that  a  purchaser  should  take  the  land 
burthened  or  benefited,  as  the  case  may  be,  by  the  qualities  whichjii£ 
previous  owner  had  undoubtedly  the  right  to  attach  to  it."  Th'^-^a^e^ 
ment  in  the  case  at  bar  was  palpable  and  permanent;  and  the  defend-) 


I4f  JU..»< 


t   Street 


\3yvwj^^!^ 


504 


,'ATIVE   TIflLES 


(Part  2 


ant  was  not  at  liberty  to  disturb  it.    As  the  exceptions  to  evidence  have 
not  been  separately  argued,  it  is  unnecessary  to  examine  them  in  detail. 
Judgment  reversed,  and  a  venire  facias  de  novo  awarded.^^ 
Rogers  and  Coulter,  JJ.,  dissented.  , 


IMITCHELL  V.  SEIPEL. 

(Court  of  Appeals  of  Maryland,  1879.     53  Md.  251,  36  Am.  Rep.  404.)  - 

Miller,  J.^^  This  action  was  brought  in  December,  1878,  by  the 
appellee  against  the  appellant  to  recover  damages  for  closing  and  ob- 
structing  an  alley  between  two  houses  then  separately  owned  by^tj^e 
respective  parties.  The  case  presents  an  important  and  interesting 
question  respecting  the  law  of  easements. 

The  facts  necessary  to  be  stated,  and  about  which  there  Is  no  dispute 
are  these :  In  the  year  1839,  Daniel  Collins  became  the  owner  under  a 
lease  for  ninety-nine  years  renewable  forever  of  a  lot  of  ground  in  the 
City  of  Baltimore,  fronting  thirty  feet  on  West  street,  and  extending 
back  eighty  ieet  to  Gould  lane,  a  public  alley  twenty  leet  wide.  The 
lot  was  then  vacant,  but  soon  after  his  purchase  Collins  erected  thereon 
two  brick  houses  trontmg  on  West  street.     These  houses  were  built 

u ■ 

about  the  same  time,  the  first  having  a  front  of  fifteen  feet,  and 
the  second  a  front  in  the  lower  story  of  twelve  feet  and  six 
inches,  and  in  the  upper  stories  of  fifteen  feet,  thus  leaving  an 
alley  of  two  feet  and  six  inches  between  them:,  covered  by  the 
joists  which  supported  the  second  floor  of  the  second  house.  These 
joists  projected  over  the  alley  and  into  the  adjoining  wall  of  the  first 
house.  The  alley  thus  covered  was  open  to  the  street,  and  extended 
back  between  the  houses  about  thirty  feet.  At  its  inner  terminus  two 
gates_jixi£_plac£d,  which  opened  respectively  into  the  rear  premises 
and  yards  of  each  house,  and  it  was  used  by  the  occupants  of  each_as 
a  common  passageway  to  and  from  the  street.  Each  house  had,  as 
usual,  a  front  door  opening  upon  the  street,  and  from  the  end  of  the 
alley  a  fence  was  built  which  extended  back  to  Gould  lane,  and  divided 
the  lot  into  two  parts,  giving  to  each  a  width  of  fifteen  feet.  During 
his  life.  Collins  continued  the  owner  of  the  w^hole  property  and  occu- 
pied one  of  the  houses.  After  his  death  his  widow  became  the  owner 
under  his  will,  and  so  continued  until  the  year  1865,  when  by  an  order 

11  Cihak  V.  Klokr.  117  111.  643,  7  X.  E.  Ill  (1SS6)  (hut  cf.  Povi-ers  v.  Heffernan, 
233  111.  597,  84  N.  E.  661.  16  L.  R.  A.  (N.  ?;.)  523,  122  Am.  St.  Rep.  109  (1908) ; 
Znamauacek  v.  Jelinek,  69  Neb.  110.  95  N.  W.  2S,  111  Am.  St.  Rep.  533  (190:1); 
Dunklee  v.  Ry.  Co..  24  N.  H.  489  (1852);  Kelly  v.  Dunning,  43  N.  J.  Eq.  62,  10 
Atl.  276  (1887);  Lampnian  v.  Milks.  21  N.  Y.  .505  (1860),  overruled  by  Wells 
V.  (Jarbutt,  132  N.  Y.  430,  30  N.  E.  978  (1892) ;  Harwood  v.  Benton,  32  Vt  724 
(1860),  but  see  Howley  v.  Chaffee,  8S  Vt.  4t;8.  93  Atl.  120  (1915),  repudiating 
illctuni  in  Ilarwood  Case ;  Bennett  v.  Booth,  70  W.  Va.  264,  73  S.  E.  909,  39  L. 
R.  A.  (N.  S.)  618  (1912),  accord. 

12  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


Ch.  4)  CREATION   OF   EASEMENTS   BY   IMPLICATION  505 


eLr'f^ 


^(pd*^^^^-^ 


of  the  Orphan's  Court,  and  in  pursuance  of  a  power  contained  in  the 
will,  the  executor  of  Collins  sold  and  conveyed  the  entire  property  to 
George  T.  Waters. 

While  the  unity  of  possession  thus  continued,  it  is  very  clear  no  ease- 
ment  in  respect  to  this  alley  existed.    A  party  cannot  have  an  easement 
in  his  own  land,  inasmuch  as  all  the  uses  of  an  easement  are  fully  com- 
prehended in  his  general  right  of  ownership.    Oliver  v.  Hook,  47  Md.  ^^^ 
308.     But  this  unity  of  ownership  was  severed  on  the  Rth  of   Tune.           C^^^^'J 
1865,  bv  Waters  the  owner,  who  on  that  day  sold  and  conveyed  the  3?^  -^^«^t/- 
second  house  and  lot  to  George  W.  Chandler,  from  who'T^  ^-^t^,  flpfpnrl- 
ant^  thrP-Ugh  several  mesne  conveyances  derived  his  title  to  the  same. 
This  conveyance  was  an  absolute  and  unqualified  grant,  describing  the 
property  by  metes  and  bounds,  which  included  the  whole  of  this  allev. 
and  contamed  n^^serT^j^jyj^of  the  right  to  use  the  same  for  the  bene- 
fit of  the  hnnsT'anrHn^^^ed  hv  the  grpntnr      Waters  retained 
ownership  of  the  first  house  and  lot  until  the  29th  of  July,  1868,  when              •  ^z    / 
he  sold  and  conveyed  the  same  to  the  plaintiff  by  a  similar  g-rnnt.  which  jA^r^-^-t^    ^ 
embraced  no  part  of  the  alley.    The  defendant  obtained  his  title  to  the       — ^v-*,-*.-*-*^ 
second  house  and  lot,  (as  before  stated  by  mesne  conveyances  from  ^         . 
Chandler,  the  first  grantee  thereof,)   in  October,   1874,  and   shortly  {/^t^ ^>*  <^^^ 
before  this  suit  was  brought,  prevented  the  plaintiff  from  using  the     ^y 
alley,  by  placing  upon  it  buildings  and  other  obstructions.    There  is  no 
pretence  that  the  plaintiff  had  acquired  a  prescriptive  right  to  use  the 
alley,  nor  is  the  case  complicated  by  any  easements  of  drainage  or 
sewerage.    There  are  no  pipe.-^  nr  drains,  either  underground  or  other- 
wise, from  one  house  to  the  other,  and  thence  to  a  common  outlet,  nor 
does  the  surface  drainage  pass  through  the  alley.     The  proof  shows 
that  the  natural  flow  of  surface  water,  and  that  from  the  hydrants  on 
both  premises  is  in  the  opposite  direction,  towards  and  to  Gould  lane,    t/uf^  A  CAyvy 
The  alley_was  therefore  simply  ^JSSSum^^^'^^  "^-^ffi^^^  way.     Without  f  ^j\ 
doubt  it  was  open  and  apparent,  and  was  made  and  designed  by  Collins,  \kA^\j  AXJt;^* 
for  the  common  use  and  benefit_aLl)nth  houses,  and  was  in  fact  so  y 
used  by  the  occupants  of  both,  until  obstructed  by  the  defendant,  but 
it  is  equally  clear  that  Collins  and  those  who  succeeded  him  in  the  .own- 
ership of  both  could  have  closed  it,  and  re-arranged  the  pr^riises.^ 
pleasure. _  The  real  question  in  the  case  then  is :    l^oes  the  la\  attach 
to  the  unqualified  grant  in  1865,  from  Waters  to  Chandler,  of  tNe  sec- 
ond house  and  lot,  by  metes  and  bounds,  which  include  the  whole  of 
this  alley,  an  im.plied  reservation  of  the  use  of  it  for  the  benefit  of  the 
hou^e_and  premises  retained  by  the  grantor?     Upon  this  point,  our 
investigations  have  led  us  to  an  examination  of  the  large  number  of 
authorities  cited  by  counsel,  as  well  as  many  others,  and  upon  no 
question  have  we  found  so  great  a  contrariety  of  judicial  opinions  and 
dicta,  if  not  of  actual  decisions.     *     *     * 

In  short,  after  a  careful  examination  of  the  numerous  authorities 
in  this  country  to  which  our  attention  has  been  called,  we  have  found 
but  one  prominent  decision  by  a  Court  of  last  resort,  in  which  the  doc- 


506  DERIVATIVE  TITLES  (Part  2 

trine  of  implied  r^asrvation  in  a  case  analogous  to  the  one  before  us 
has  been  sustained,  where  the  facts  were  such  as  fairly  to  present  the 
question  for  determination.  That  is  the  case  of  Seibert  v.  Levan.  8 
Pa.  383,  49  Am.  Dec.  525,  in  which  the  opinion  of  the  Court  sustaining 
the  doctrine  was  delivered  by  Gibson,  Ch.  J.,  in  his  usual  forcible  and 
vigorous  style.  Two,  however,  of  the  five  Judges  dissented,  and  in  the 
course  of  his  opinion  the  Chief  Justice  was  obliged  to  set  aside  the 
opposing  authorities  of  Burr  v.  Mills,  21  Wend.  (N.  Y.)  292,  and 
Preble  v.  Reed,  17  Me.  175.  Against  this  case  may  be  placed  tlie  dgci- 
sipn  in  Carbrev  v.  Willis.  7  Allen  CMass.^  364.  83  Am.  Dec.  688, 
(where  also  tlie  facts  presented  tlie  question,)  in  which  it  was  said 

!by  the  Supreme  Court  of  Massachusetts :  "But  where  there  is  a  grant 
of  land  by  inetes  and  bounds  without  express  reservation,  and  with  full 
covenants  of  warranty  against  encumbrances,  we  think  there  is  no 
just  reason  for  holding  that  there  can  be  any  reservation  by  implica- 
tjon,  unless  the  easement  is  strictly  one  of  necessity.  Where  the  ease- 
ment is  only  one  of  existing  use  and  great  convenience,  but  for  which  a 
substitute  can  be  furnished  by  reasonable  labor  and  expense,  the  gran- 
tor may  certainly  cut  himself  off  from  it  by  his  deed,  if  such  is  the 
intention  Qf_tli£_parties.  And  it  is  difficult  to  see  how  such  an  inten- 
tion could  be  more  clearly  and  distinctly  intimated  than  by  such  a  deed 
and  warranty."  In  a  subsequent  case  in  the  same  State.  (Randall  v. 
McLaughlin,  10  Allen  [IMass.l  366.)  notice  is  taken  of  the  fact  that  the 
authority  of  Pyer  v.  Carter  [1  H.  &  N.  916]  had  then  recently  been 
wdiolly  denied  by  the  Chancellor  of  England,  in  the  opinion  given  in 
Suffield  V.  Brown  [4  De  G.,  J.  &  S.  185],  which,  says  the  Court,  "con- 
tains an  elaborate  review  of  the  whole  doctrine,  resulting  in  conclusions 
substantially  like  those  to  which  we  came  in  Carbrey  v.  Willis." 

But  the  decision  of  our  predecessors  in  McTavish  v.  Carroll,  7  Md. 
352,  61  Am.  Dec.  353,  has  been  pressed  upon  our  attention  by  the 
appellee's  counsel.  That  was  a  case  peculiar  in  its  facts  and  circum- 
stances. A  father  who  owned  a  large  tract  of  land  on  which  there  was 
a  mill,  mill-dam,  race  and  roadway  for  repairing  it,  conveyed  by  a 
voluntary  deed  of  gift,  the  portion  on  which  the  dam,  race  and  road 
were  situated,  to  his  daughter  without  reserv'ation,  and  subsequently 
by  a  like  deed,  conveyed  the  portion  on  which  the  mill  was  located  to 
his  son,  and  in  both  deeds  reserved  a  Hfe  estate  to  himself.  The  Court 
held  that  the  grantee  of  the  portion  on  which  the  mill  was  situated,  was 
entitled  to  the  use  of  the  dam,  race  and  road  upon  the  principle  of  legal 
necessity,  but  also  adverted  to  the  fact  as  distinguishing  that  case  from 
the  authorities  there  cited,  that  the  two  deeds  gave  the  grantees  the 
right  of  possession  at  the  same  time,  viz. ;  upon  the  death  of  the  gran- 
tor, he  having  reserved  to  himself  a  life  estate  in  both  parcels  of  land. 
•  There  was  in  fact,  therefore,  no  antecedence  of  title  of  one  grantee  to 
the  oth^r^  and  in  view  of  the  authorities  to  which  we  have  referred,  the 
decision  of  that  case  might  well  have  been  rested  on  that  point  alone. 
But  it  was  in  other  respects  materially  dift"erent  from  tlie  present  case, 


Ch.  4)  CREATION   OF  EASEMENTS  BY   IMPLICATION  507 

and  cannot  control  its  decision.  Neither  in  that  case  nor  in  that  of 
Oliver  v.  Hook,  47  Md.  301,  were  the  views  of  Gale  on  Easements, 
adopted  further  than  in  reference  to  implied  grants,  and  in  the  latter 
case,  it  was  held  upon  abundant  authority,  that  even  the  doctrine  of 
implied  grants  had  no  application  to  the  case  of  an  ordinary,  open  and 
unenclosed  way,  not  being  at  the  time  of  the  grant  an  existing  ease- 
ment. 

Finding  then  no  binding  decision  of  this  Court,  and  no  decided  pre- 
ponderance of  authority  in  this  country,  to  prevent  us  from  following 
the  law  as  it  has  recently  been  settled  by  the  decisions  in  England,  and 
being  satisfied  the  distinction  so  clearly  drawn  in  those  decisions  be- 
tween what  has  been  called  an  implied  grant,  and  what  has  been 
attempted  to  be  established  under  the  name  of  an  implied  reservation, 
is  not  only  founded  in  reason,  but  has  existed  almost  as  far  back  as  the 
law  upon  the  subject  can  be  traced,  we  shall  aPDly  it  to  the  case  be- 
fore us. 

It  rernains  then  to  ascertain  whether  this  alley  is  a  way  of  necessity, 
so  as  to  fall  within  the  exception  to  the  second  proposition  stated  in 
Wheeldon  v.  Burrows.  Among  the  cases  coming  under  this  exception, 
reference  may  be  made  to  Pinnington  v.  Galland,  9  Excheq.  1,  and 
Davies  v.  Sear,  Law  Rep.  7  Eq.  427.  In  those  cases  the  ways  in  ques- 
tion were  ways  of  necessity,  and  the  decisions  went  upon  that  ground. 
But  we  are  all  clearly  of  opinion  this  allev  is  not  such  a  way.  We 
adopt  as  entirely  applicable  to  the  present  case,  what  was  said  in  Dodd 
v.  Burchell,  1  Hurl.  &  Colt,  11-3,  by  Wilde,  B.,  viz.,  "It  appears  at  the 
time  of  the  grant  in  respect  of  which  the  right  of  way  is  claimed,  there 
was  a  way  from  the  house  into  the  garden,  and  that  way  now  exists. 
But  it  is  said  the  way  now  claimed  is  more  convenient  than  the  other. 
Then  comes  the  question  whether  the  plaintiff  can  claim  it  as  a  way  of 
necessity,  on  account  of  its  great  superiority  over  the  other  way.  It 
seems  to  me  that  it  would  be  most  dangerous  to  hold,  that  where  a  deed 
is  silent  as  to  any  reservation  of  a  way,  the  one  that  is  more  convenient 
to  use  than  another  way,  must  exist  as  a  way  of  necessjtx..  There  is 
no  foundation  whatever  for  such  a  doctrine."  When  the  deed  of  1865 
from  Waters  to  Chandler  was  executed,  access  to  the  yard  and  kitchen 
of  the  house  retained  by  the  grantor  could  be  had,  not  only  through 
the  front  door  of  the  house,  but  from  Gould  lane  in  the  rear.  Such 
public  lanes  or  alleys  are  to  be  found  in  almost  every  part  of  the  City 
of  Baltimore,  and  were  made  for  the  very  purpose  of  affordiiig_a£cess 
to  yards  and  kitchens  which  could  not  otherwise  be  reached  save 
through  the  front  doors  of  the  houses.  Most  of  the  dwellings  in  that 
city  have  such  alleys  in  the  rear,  and  no  entrance  from  the  front  ex- 
cept a  door  which  opens  into  a  hall  or  front  room.  It  is  true  the  proof 
shows  there  was  a  brick  stable  on  the  plaintiff's  lot  fronting  on  Gould 
lane,  but  it  was  built  by  the  plaintiff  himself,  and  not  until  after  the 
year  1872.  If  this  obstructed  access  from  Gould  lane,  it  was  the  plain- 
tift"'s  own  fault.     He  certainly  could  not  by  his  own  act,  without  con- 


508  DERIVATIVE  TITLES  (Part  2 

sent  and  against  the  rights  of  the  defendant,  convert  this  alley  from  a 
way  of  convenience  to  a  way  of  necessity.  Whether  it  is  a  way  of 
necessity  or  not,  must  depend  upon  the  state  of  things  existing  at  the 
date  of  the  deed  of  1865,  and  not  with  reference  to  the  changes  subse- 
quently made  by  the  plaintiff  on  his  own  premises.  At  that  time  the 
alley  was,  as  it  is  now,  useful  and  convenient,  but  it  was  not  what  the 
lg.w  regards  as  a  way  of  necessity. 

But  it  has  been  further  argued,  there  ought  to  be  an  implied  reserva- 
tion of  this  alley,  because  that  part  of  the  house  granted  by  the  deed 
of  1865,  which  is  above  the  alley,  is  supported  by  the  wall  of  the  house 
retained  by  the  grantor.  The  contention  on  this  point  i'^,  that  ihe  alley 
and  this  support  afforded  the  granted  house  make  a  case  of  reciprocal 
easements.  But  we  do  not  see  how  the  fact,  that  there  may  be  an  im- 
plied grant  of  this  easement  or  right  of  support,  can  be  held  to  take 
from  the  grantee  the  ground  used  for  the  alley,  which  was  expressly 
granted  to  him  without  reservation.  The  two  are  not  necessarily^r 
inseparably  connected.  The  case  is  not  like  that  of  Richards  v.  Rose, 
9  Excheq.,  218,  where  a  block  of  houses  on  a  plot  of  ground  were  so 
built  together  by  the  same  owner  as  necessarily  to  require  mutual  sup- 
port. In  that  case  it  was  held  that  there  was,  either  by  a  presumed 
grant  or  by  a  presumed  reservation,  a  right  to  such  rhutual  support, 
so  that  the  owner  who  sells  one  of  the  houses  as  against  himself  grants 
such  right,  and  on  his  own  part  also  reserves  the  right,  and  consequent- 
ly the  same  mutual  dependence,  of  one  house  upon  its  neighbor's  still 
remains.  This  furnishes  another  instance  of  an  easement  of  necessity 
within  the  exception  to  the  general  rule  forbidding  implied  reserva- 
tions. The  present  case,  however,  is  quite  different.  It  does  not  come 
up  to  that  case,  nor  does  it  touch  the  cases  or  the  law  of  party  walls, 
nor  even  that  of  an  alley  situated  and  constructed  in  the  manner  de- 
scribed in  the  case  of  Dowling  v.  Hennings,  20  Md.  179,  83  Am.  Dec. 
545.      ■ 

It  follows  that  there  was  error  in  granting  the  instruction  given  by 
the  Court,  and  for  this  the  judgment  must  be  reversed.  The  Court, 
however,  was  clearly  right  in  excluding,  at  the  instance  of  the  defend- 
ant, the^  agreement,  under  seal,  between  Chandler  and  Waters,  of  the 
8th  of  June,  1865,  which  professes  to  grant  the  common  use  of  this 
alley.  That  instrument  was  never  recorded,  and  was  not  embodied  in 
or  referred  to  by  the  deed  of  the  same  date.  It  can  have  no  effect  in 
determining  the  construction  or  operation  of  that  deed,  nor  can  it  .in 
any  wise  affect  the  rights  of  the  parties  to  this  suit.  It,  therefore, 
plainly  appears,  from  the  record  before  us,  that  the  plaintiff"  has  no 
ground  of  action,  on  account  of  the  obstruction  complained  of,  and  it 
hence  becomes  the  duty  of  this  Court  not  to  award  a  new  trial. 
""Judgment  reversed,  and  new  trial  refused. 


Ch.4) 


CREATION   OF   EASEMENTS  BY   IMPLICATION 


509 


MANCUSO  V.  RIDDLEMOSER  CO.   OF  BALTIMORE  CITY. 


(Court  of  Appeals  of  Maryland,  1911.     117  Md. 

1914A,  84.) 


53,  82  Atl.  1051,  Ann.  Cas. 


Urner,  J.^^  The  aroellpg  corporation  is  the  owner  of  a  six-story 
industrial  building-  in  Baltimore  City,  fronting  on  the  south  side  of 
Fayette  street  and  abutting  in  the  rear  on  an  alley  known  as  Bank 
lane.  On  July  27th,  1908,  the  company  leased  to  the  appellants  a  ware- 
room  on  the  first  floor  of  the  building  together  with  a  part  of  the 
basement  lying  immediately  north  of  the  alley  and  south  of  a  designat- 
ed wall.  The  lease  was  for  a  term  of  two  years.  Sometime  during 
the  first  year  the  tenants,  in  consideration  of  a  reduction  in  the  rent, 
surrendered  to  the  landlord  the  north  half,  approximately,  of  the  base- 
ment area  covered  by  the  lease,  and  the  new  division  line  was  indi- 
cated by  a  wire  screen  partition  then  constructed.  On  February  11th, 
1910,  the  parties  executed  a  new  agreement  for  the  leasing  to  the  ap- 
pellants of  tlie  room  and  cellar  space  they  then  occupied  for  the  term 
of  five  years,  beginning  September  1st,  1910,  with  an  option  to  the 
lessee  to  renew  for  successive  terms.  In  each  of  the  leases  it  was 
s tipulated  that  the  premises  should  be  used  only  as  a  barber  shop  an d 
bathing  establishment  and  for  certain  incidental  purposes,  and  there 
was  a  covenant  that  the  landlord  should  supply  all  hot  and  cold  v/a- 
ter  and  all  electric  current  and  heat  reasonably  required  by  the  ten- 
ants in  the  prosecution  of  their  business.  The  section  of  basement 
leased  to  the  appellants  appears  to  have  been  mainly  ust^d  by  th-r^m 
for  access  to  a  toilet  and  for  the  storage  of  empty  boxes.  In  the  base- 
ment retained  by  the  landlord,  and  partially  under  the  wareroom  ten- 
anted by  the  appellants,  is  located  the  steam  and  electric  plant  by  which 
the  appellee's  building  is  supphed  with  heat,  light  and  power.  There 
are  numerous  lessees  who  are  dependent  upon  this  service.  The  en- 
tire second  floor  is  occupied  by  a  business  college,  and  the  floors 
above  by  various  manufacturing  industries,  while  the  first  floor  ac- 
commodates several  business  enterprises  in  addition  to  that  conducted 
by  the  appellants. 

At  the  rear  of  the  basement  leased  to  the  appellants  is  a  doorway 
five  feet  wide  opening  into  Bank  lane.  It  is  equipped  with  outer  doors 
of  iron,  with  inner  doors  of  glass,  and  with  intermediate,  doors  of  wire 
screen.  Until  a  short  time  before  the  filing  of  the  present  bill  this 
doorway  had  been  used  continuously  by  the  employees  of^the  appelke 
in  going  to  and  from  the  steam  and  electric  plant  and  in  moving  sup- 
pnes  and  repairs,  and  the  iron  and  glass  doors^  had  been  kept  open  in 
order  to  aid  ventilation  and  reduce  the  temperature.  There  were 
openings  provided  for  the  same  purposes  through  the  w^all  and  screen 
partition  located  between  the  plant  and  the  rear  portion  of  the  base- 
ment.    It  appears  without  dispute  that  the  temperature  of  the  base- 


Afeygr/g 


fSAmf<   A 


13  A  portion  of  the  opinion  is  omitted. 


510  DERIVATIVE  TITLES  (Part  2 

ment,  with  the  Bank  lane  doors  open,  is  usually  about  one  hundred 
and  eight  degrees  in  winter  and  sometimes  as  high  as  one  Irundred 
and  forty-five  degrees  in  summer,  and  that  when  these  doors  are  closed, 
at  any  season  of  the  year,  the  thermometer  rises  about  forty  degrees. 
This  is  shown  by  the  evidence  to  be  considerably  above  the  tempera- 
ture at  which  the  men  can  remain  at  work  and  the  machinery  be  op- 
erated with  safety.  The  testimony  is  that  when  the  heat  reaches  one 
hundred  and  fortv-five  or  one  hundred  and  fiftv  degrees  there  is  dan- 
ger that  the  wiring  and  insulation  on  the  electric  generators  will  ^be 
destroved.  This  would  necessarily  cause  a  stoppage  of  the  plant  and 
of  all  the  machinery  which  it  supplies  with  power  and  would  require 
heavy  expenditures  for  repairs.  It  is  proven  also  that  in  the  event 
of  a  sudden  discharge  of  steam,  which  may  result  from  the  bursting 
of  a  pipe  or  the  blowing  out  of  a  gasket,  the  only  way  of  escape  for 
tlie  employees  in  the  basement  would  be  through  the  door  opening 
on  Bank  lane.  There  is  a  narrow  passage  leading  by  the  boiler  and 
fire  pit  to  a  stairway  in  the  front  of  the  building,  but  an  accident  of 
the  character  described,  which  has  already  once  occurred,  would  cut 
ofif  this  means  of  exit. 

The  conditions  we  have  indicated  were  existing  and  apparent  when 
the  appellants  entered  into  possession  under  their  first  lease.  They 
knew  that  the  employees  in  charge  of  tlie  steam  and  electric  plant 
were  daily  using  and  depending  upon  the  alley  doorway  for  ingress 
and  egress.  They  must  have  been  aware  also  that  the  system  of  ven- 
tilation which  the  appellees  had  provided  for  the  basement  of  their 
building  could  not  be  effective  if  the  door  in  question  were  keptclosed. 
They  m.ade  no  objection  for  nearly  three  years  to  the  use  of  the  door- 
way by  the  appellees  for  the  purposes  we  have  mentioned,  and  it  was 
not  until  after  this  Inng  period  of  acquiescence  that  tliey  locked^the 
door  and  asserted  that  its  exclusive  control  belonged  to  them  under 
their  lease.  They  assumed  this  attitude  for  the  first  time  early  in 
]\Iarch,  1911,  and  when  they  then  closed  and  fastened  the  door  the 
temperature  of  the  basement  rose  to  about  one  hundred  and  forty  de- 
grees, and  according  to  the  testimony  of  the  engineer  in  charge  "it 
absolutely  got  dangerous  to  run  the  machines,  and  it  was  dan&erous 
not  only  to  the  machines  but  to  the  help,  and  you  simply  suffocated  in 
there,  and  if  anything  were  to  happen  you  were  caught  like  rats  in 
a  trap  and  couldn't  get  out."  After  this  condition  had  existed  for 
about  two  weeks  the  City  Inspector  of  Buildings  notified  both  the  ap- 
pellants and  appellees  "to  keep  free  and  open  the  rear  exits  of  the 
heating  plant  in  the  bpilding,  as  it  appears  they  are  now  locked  and 
bolted.  It  is  a  menace  to  the  men  operating  the  plant  and  must  be 
done  immediately."  This  was  followed  a  few  days  later  by  the  pres- 
ent bill  for  an  injunction  to  restrain  the  appellants  from  keeping_jlie 
doorway  closed  A  preliminary  writ  was  granted,  and  upon  final  hear- 
^^^.f^      ing  the  injunction  was  made  perpetual. 

In  support  of  their  position  the  appellants  rely  upon  the  fact  that 


^ 


Ch.4) 


CREATION   OF   EASEMENTS   BY   IMPLICATION 


the  lease  under  which  they  hold  contains  no  express  re.serv^_gj;i  to  th e 
appellee  of  any  right  to  fhe  use  of  the;  doorway  now  in  dispute,  and 
they  invoke  the  well  settled  principle  that  easement  by  implied  reserva- 
tion will  not  be  sustained  except  in  cases  of  strict  necessity.  Jay  v. 
Michael,  92  Md.  210,  48  Atl.  61 ;  Burns  v.  Gallaglii7r62  Md.  472; 
Mitchell  V.  Seipel,  53  Md.  269,  36  Am.  Rep.  404.  It  is  insisted  that 
the  conditions  shown  by  the  record  are  not  such  as  to  make  the  present 
case  an  exception  to  the  general  rule.  The  contention  is  that  the  use 
by  the  appellee  of  the  doorway  in  controversy  is  not  necessary,  with- 
in the  meaning  of  the  rule  staTed.  because  it  is  possible  that  other 
means  of  access  and  ventilation  may  be  provided  through  other  por- 
tions of  the  basement.  The  evidence,  however,  does  not  support  this 
theory.  It  is  shown  by  the  proof  tliat  no  adequate  provision  could  be 
made  in  substitution  for  the  use  of  the  opening  into  the  alley  without 
injuriously  encroaching  upon  the  rights  of  other  tenants  in  possession 
of  adjacent  sub-divisions  of  the  basement  under  prior  leases.  When 
the  appellants  acquired  their  leasehold  interest,  the  doorway  on  Bank 
lane  was  the  only  way  under  the  control  of  the  appellees  by  which  a 
draft  of  air  could  be  obtained  for  the  area  occupied  by  the  steam  and 
electric  plant  and  by  which  a  safe  exit  could  be  secured  for  the  engi- 
neer and  fireman.  This  doorway  was  then,  and  thereafter  continued 
to  be,  in  actual  and  necessary  use  for  these  vitally  important  purposes. 
Under  such  circumstances  it  is  clear  that  a  reservation  to  the  appellee 
of  the  right  to  such  user  must  have  been  understood  and  intendedJjy 
both  the  parties  to  the  lease.  In  tlie  decisions  we  have  cited  it  was 
held  that:QTt  is  only  in  cases  of  strictest  necessity,  and  where  it  would 
not  be  reasonable  to  suppose  that  the  parties  intended  the  contrary, 
that  the  principle  of  implied  reservation  can  be  invoked."  I  In  the  case 
before  us  it  would  be  altogether  unreasonable  to  suppose  that  there 
was  any  intention  on  the  part  of  the  lessor  company  or  of  the  lessees 
that  the  former  should  surrender  the  only  available  means  of  insur- 
ing the  safety  of  the  employees  in  charge  of  the  plant  in  the  basement 
and  of  obtaining  the  ventilation  required  for  its  satisfactory  operation. 
In  our  judgment,  under  the  conditions  presented  in  this  case,  the  use 
of  the  rear  doorway  in  connection  with  the  steam  and  electric  plant 
must  be  held  to  be  one  of  strict  and  absdute  necessity.  *  *  * 
Decree  affirmed,  with  costs. 


511 

and^tt/**^  • 


BROWN  V.  FULLER. 

(Supreme  Court  of  MieMgan,  1911.     165  I^.Iicli.  162,  ir>0  N.  W.  621,  33  L.  R.  A. 

[N.  S.]  459,  Ann.  Cas.  1912C,  853.) 

Complainant  and  defendants  were,  respectively,  owners  of  adjoin- 
ing^ lots  facing  Burdick  street,  in  the  city  of  Kalamazoo.  Upon  com- 
plainant's lot,  which  was  22  feet  wide  and  about  230  feet  deep,  ex- 
tending to  Farmer's  alley,  there  had  stood  for  many  years  a  three- 


'^ 


liJyJL^^fU  I   M 


512    •  DERIVATIVE  TITLES  (Part  2 

story  brick  block,  running  east  from  Burdick  street  about  90  feet. 
To  the  east  and  in  tlie  rear  of  said  brick  building,  a  one-story  build- 
ing extended  eastward  to  the  alley,  about  130  feet.  The  sewage_jrom 
the  brick  block  was  conducted  under  the  one-story  building  to  a  lateral 
sewer  in  Farmer's  afley!  The  roof  drainage  of  the  block  was  carried 
onto  the  roof  of  the  one-story  building  and  thence  to  the  alley.  De- 
fendants  desired  to  erect  a  theater,  and,  their  own  lot  not  affording 
suthcient'area  for  their  purpose,  negotiated  with  complainant  for  tlie 
purchase  of  tlie  rear  or  easterly  130  feet  of  her  lot.  On  November 
9,  1908,  a  warranty  deed  of  said^  parcel  with  full  covenants  against 
incumbrances  was  executed  by  complainant  to  defendants  for  the  con- 
sideration  of  $5,000.    This  deed  contains  the  following  agreement: 

"It  is  understood  and  agreed  between  the  parties  hereto,  as  a  part 
of  the  consideration  of  this  deed,  that  the  second  parties  are  to  build 
a  wall  on  tlie  west  side  of  the  land  above  conveyed,  about  16  inches 
thick  and  about  40  feet  in  height,  and  that  the  party  of  the  first  part 
is  to  own  said  wall  jointly  with  the  second  parties,  and  it  is  to  be 
used  as  a  party  wall.  The  center  of  the  said  wall  to  be  on  tlie  west 
line  of  the  land  above  conveyed," 

Defendants,  after  said  purchase  was  complefedj  proceeded  to  tear 
down  the  one-story  building  which  stood  on  the  lot  conveyed,  and 
commenced  excavation  for  the  basement  under  the  proposed  theater. 
In  excavating,  the  sewer  from  complainant's  block  was  uncovered,  and 
as  defendants  desired  to  make  a  basement  nine  feet  deep,  which  was 
three  or  four  feet  deeper  than  the  sewer,  the  sewer  was  cut,  and  the 
excavation  proceeded.  In  the  negotiations  complainant  did  not  ad- 
vise defendants  of  the  existence  of  the  sewer,  and  the  record  does  not 
show  that  they  or  either  of  them  knew  it  was  there. 

After  the  sewer  was  cut,  complainant  filed  her  bill  of  complaint, 
praying  for  a  mandatory  injunction  compelling  defendants  to  resto.re 
the  sewer  connection  and  roof  drain-pipe,  and  for  a  permanent  in- 
junction restraining  defendants  from  breaking  or  interfering  with  tlie 
sewer  and  from  interfering  with  the  passage  of  tlie  roof  drainage  over 
said  lot.  A  preliminary  mandatory  injunction  was  granted  ex  parte 
which  the  court  refused,  on  motion,  to  vacate.  This  injunction  was 
granted  on  January  5,  1909.  The  cause  came  on  to  be  heard  on  the 
merits  October  17,  1909.  In  'the  meantime,  defendants  had  completed 
the  theater  building,  and,  in  obedience  to  the  mandate  of  the  coyrt, 
had  taken  care  of  the  complainant's  sewage  and  roof  drainage,  at 
considerable  expense.  Upon  final  hearing,  tlie  preliminary  injunction 
was  made  permanent.  The  decree  further  provides  tliat  the  expense 
of  maintenance  and  repairs  of  the  sewerage  connection  and  tlie  storm 
pipe  shall  be  borne  equally  by  the  parties.  From  this  decree  defend- 
ants appeal. 

Brooke,  J.  (after  stating  the  facts).    The  sole  question  for  deter- 

^/'^mination  here  is  whether  or  not  there  is  an  iiiiplied  reservation  of  an 

/^"^      Vasement  over  the  land  sold  by  complainant  to  defendants.    It  is  said 


Ch.  4)  CREATION   OF   EASEMENTS  BY   IMPLICATION  513 

that  in  reaching  the  conclusion  he  did,  the  learned  circuit  judge  re- 
lied upon  the  case  of  Smith  v.  Dresselhouse,  152  Mich.  451,  116  N. 
W.  387.  An  examination  of  the  facts  in  that  case  will  at  once  demon- 
strate that  it  differs  vitally  and  fundamentally  from  the  case  here  con- 
sidered. There  the  owner  of  two  adjoining  tenements,  located  upon 
either  side  of  a  river,  upon  each  of  which  stood  a  mill,  sold  one  of 
the  tenements  to  the  complainant  in  that  case,  and,  as  appurtenant  to 
the  tenement  conveyed,  sold  the  water  rights.  The  owner  and  his 
grantees  continued  to  operate  the  mill  on  the  other  side  of  the  river, 
using  the  water  for  that  purpose.  Complainant  filed  his  bill  to  enjoin 
the  use  of  the  water.  This  court  held  tliat,  as  to  the  water,  complain- 
ant was  a  tenant  in  common  with  the  owner  of  the  adjoining  tenement 
on  the  opposite  bank  of  the  stream.  Mr.  Justice  Ostrander,  in  stat- 
ing the  general  rule,  there  said : 

"It  is  a  general  rule  of  the  law  of  easements  that  where  the  owner 
of  two  tenements  sells  one  of  them,  the  purchaser  takes  the  portion 
sold  with  all  the  benefits  and  burdens  which  appear  at  the  time  of  the 
sale  to  belong  to  it  as  between  it  and  tHe  property  which  the  vendor 
retains." 

The  matter  under  consideration  was  a  grant,  not  a  reservation,  and 
in  discussing  the  effect  of  the  grant  he  further  said: 

"We  should  not  expect  that  a  grant  of  the  land  on  one  side  of  the 
river  only,  the  grantor  retaining  the  land  and  mill  on  the  other  side, 
and  using  the  water  there  appurtenant,  conveyed  an  exclusive  right 
to  the  entire  water  power.  The  terms  of  the  grant  to  complainant  are 
express  and  seem  to  be  unambiguous.  The  land  is  described  by  metes 
and  bounds.  One  boundary  is  the  center  of  the  main  channel  of  the 
river.  The  mill  tract  and  the  mill  are  within  the  boundaries.  It  is  the 
mill  privilege  and  water  power  'there  situate,'  i.  e.,  appurtenant  to  the 
land  conveyed,  which  is  deeded,  with  the  right  to  flow  lands  and  to 
*use  and  make  usd  of  the  water  power  there  situated.'  " 

Assuming,  therefore,  that  tlie  rule  was  correctly  stated,  the  case  was 
determined,  not  by  any  application  of  the  rule,  but  by  a  construction 
of  the  terms  of  the  grant.  Nor  is  it  applicable  to  tlie  case  under  con- 
sideration. Here,  the  sewer  was  under  ground.  It  was  not  apparent, 
and  defendants  are  not  shown  to  have  had  any  knowledge  of  its  ex- 
istence under  the  land  purchased  by  them.  But,  if  they  had  such 
knowledge,  that  fact  would  not  be  controlling,  because  complainant 
knew  that  tlie  use  to  which  this  property  was  to  be  devoted  would 
uncover  the  sewer  and,  as  it  existed,  destroy  it. 

Even  if  it  could  be  said  that  a  grantor  under  any  circumstances  could 
by  implication  reserve  the  right  to  continue  an  underground  sewer  in 
the  premises  granted,  which  we  do  not  determine,  it  would  not  aid 
complainant.  Here,  it  is  sought  by  implication  to  reserve  the  right  to 
have  the  existing  sewer  destroyed  and  rebuilt  in  the  air  througkJihe 
basement  of  the  tenement  to  be  erected  upon  the  demised  lands.  Sim- 
Aig.Pbop.— 33 


514  DERIVATIVE  TITLES  (Part  2 

ply  to  state  such  a  proposition  v^ould  seem  to  be  a  sufficient  answer. 

The  rule  apphcable  to  implied  reservations  of  easements  is  stated  in 
14  Cyc,  p.  1171,  as  follows: 

"As  regards  implied  reservations  of  easements,  the  matter  stands  on 
principle  in  a  position  very  different  from  implied  grants.  If  the 
grantor  intends  to  reserve  any  right  over  the  tenement  granted,  it  is  his 
duty  to  reserve  it  expresslv  in  tlie  grant.  To  say  that  a  grantor  re- 
serves to  himself  in  entirety  that  which  may  be  beneficial  to  him,  but 
which  may  be  most  injurious  to  his  grantee,  is  quite  contrary  to  the 
principle  upon  which  an  implied  grant  depends,  which  is  that  a  grantor 
shall  not  derogate  from  or  render  less  effectual  his  grant  or  render 
that  which  he  has  granted  less  beneficial  to  his  grantee.  (^Accordingly, 
here  there  is  a  grant  of  land  with  full  covenants  of  warranty  wjth- 
express  reservation  of  easements,  the  best  considered  cases  hold 


f^^""^"^ jA^*^^  that  there  can  be  no  reservation  by  implication,  unless  the  easement  is 
^  ^^^    ^  ^strictly  one  of  necessity."   "S 

^  ^^^sesare  cited  from  many  jurisdictions  in  support  of  this  statement 

/■-I     .  jy    .         of  principle,  and  we  think  it  is  in  accord  with  the  weight  of  modern 

~fA/9^*^^l  authority.     The  great  weight  of  authority  touching  the  question,  with 

*^^  '     ^,     reference  to  subterranean  drainage,  is  to  the  effect  that,  if  tlie  owner 

ff^i       \    of  the  land  under  which  there  is  such  a  drain  conveys  a  part  of  it^mth 

ixr***^    "T^£>^'    f"l^  covenants  of  warranty  without  reference  to  the  drain,  no  easement 

[  CAt^'^        is  reserved. 

!/«'  The  grantor  and  his  privies,  under  such  circumstances,  are  estopped 

to  claim  any  interest  in  the  premises  so  granted.  To  permit  such  a 
claim  would  be  to  allow  the  grantor  to  derogate  from  the  terms  of 
his  grant  which,  by  every  applicable  principle,  is  forbidden.  The  au- 
thorities upon  the  subject  are  collected  and  discussed  in  10  Am.  & 
Eng.  Enc.  Law  (2d  Ed.)  p.  42.  See,  also,  14  Cyc.  p.  1169,  and  cases 
there  cited,  and  Farnham  on  Waters  &  Water  Rights,  vol.  3,  pp.  2454, 
2455. 

In  the  recent  case  of  Covell  v.  Bright,  157  Mich.  419,  122  N.  W. 
101,  which  upon  principle  much  resembles  the  case  at  bar,  we  said: 

"To  entitle  the  complainant  to  a  decree,  the  burden  was  upon  him 
to  establish  that  the  servitude  was  apparent,  contijiuous,  and  strictly 
necess^rx.to  the  enjoyment  of  nis  lands     citingcases. 

In  New  Jersey,  a  different  doctrine  for  a  long  time  obtained,  based 
upon  the  ruling  in  the  celebrated  case  of  Pyer  v.  Carter,  1  Hurlst.  & 
N.  916,  and  those  cases  which  followed  the  rule  there  laid  down.  _Pys.r 
v.  Carter  hasu-frequently  been  severely  criticised,  and  wa^;  finally  dis- 
tinctlx--QY£rrule_d_iii_Eiigland.  The  case  of  Toothe  v.  Bryce,  50  N.  J. 
Eq.  589,  25  Atl.  182,  contains  a  review  of  the  English  and  American 
cases,  questions  the  soundness  of  the  doctrine  announced  by  that  court 
in  its  earlier  decisions,  and  seems  to  recognize  the  distinction  between 
an  implied  p^rant  of  an  easement  and  an  jmplied  reservation. 

While  it  is  apparent  from  the  record  that  it  will  be  somewhat  ex- 


Ch.  4)  CREATION  OF  EASEMENTS  BY  IMPLICATION  515 

pensive  to  dispose  of  the  sewage  from  complainant's  building  otherwise  'jf^B*.  '^ 

than  over  deiendants'  land,  it  by  no  means  appears  that  it  is  impos-  7^1/^^^^'^ 
sible  to  do  so.    There  is  not  made  out,  therefore,  a  case  of  strict  neces-    ^j( 
sjty,  .  ' 

The  case  presents  this  alternative :  Either  complainant  at  some,  per- 
haps considerable,  expense  to  herself,  must  take  care  of  her  own  sewage 
and  storm  waters,  or  the  defendants  who  purchased  and  paid  for  a 
tenement  warranted  to  be  free  from  all  incumbrances,  must  take  that 
tenement  charged  in  perpetuity  with  an  incumbrance  of  a  very  serious 
character  and  one  which  is  liable,  through  the  breaking  or  stoppage 
of  the  drain,  to  cause  serious  annoyance  and  damage. 

Why  should  defendants  be  compelled  to  accept  this  burden?  Why 
should  they  be  charged  in  perpetuity  with  the  duty  of  defraying  one-  • 
half  of  the  expense  of  maintaining  complainant's  sewer  as  well  as  the 
cost  of  its  original  construction?  So  far  as  the  record  discloses,  they 
have  done  no  act  which  was  not  fully  warranted  by  the  terms  of  the 
grant  to  them.  Thev  have  sought  to  make  use  of  the  granted  tene- 
ment in  a  lawful  manner  and  in  a  manner  and  for  a  purpose  known' 
bv  cnmplninant  before  the  sale. 

Touching  the  disposition  of  the  storm  waters,  it  is  clear  that,  by 
the  sale  of  the  one-story  building  upon  which  it  had  theretofore  been 
carried  to  the  alley,  with  the  knowledge  that  said  building  was  to  be 
immediately  demolished,  complainant  must  have  known  that  such 
drainage  would  be  interrupted.  The  very  terms  of  her  written  con- 
tract show  this,  because  she  stipulated  for  the  erection  of  a  brick  wall 
between  the  premises  granted  and  those  retained.  This  wall  was  to 
be  16  inches  thick  and  about  40  feet  in  height.  It  is  obvious  that  she 
could  not  have  contemplated  the  carrying  of  her  roof  waters  over  that 
wall.  At  that  moment  it  was  apparent  that  some  new  arrangement 
must  be  made  to  care  for  this  water.  D^efendants  did  not  contract  to 
build  a  new  drain  and  carry  it  across  their  own  property  to  the  alley. 
nor  did  they  agree  to  construct  a  new  sewer,  and  we  know  of  no_Erin- 
ciple  of  equity  which  would  compel  th.em  to  do  so. 

The  decree  of  the  court  below  is  reversed,  and  the  bill  of  complaint 
is  dismissed,  and,  inasmuch  as  the  record  discloses  that  defendants  have 
expended  certain  sums  of  money  in  obedience  to  the  mandate  of  the 
court  in  caring  for  complainant's  sewage  and  water,  the  record  will 
be  remandpH  fnr  thf>  pnrpn<;p  nf  aqrertaining  the  exact  f^mnnnf  of  f^nrh 
expenditure  which,  when  ascertained,  shall  be  decreed  to  be  a  debt  due 
from  complainant  to  defendants  for  the  collection  of  which  execution  , 

OsTRANDER,  C.  J.,  and  H^OKERfM^xv^Y^BSiCSid^T^       JJ.,  'yCM  C^^^' 

concurred  with  Brooke,  J. 

Bird,  J."  (dissenting).  I  am  of  the  opinion  tliat  the  trial  court 
readied  a  right  conclusion  upon  the  law  and  facts  in  this  case  and  that 
it  migh\  to  be-  affirmed  by  this  court. 

In  the  case  of  Smith  v.  Dresselhouse,  152  Mich.  451,  116  N.  W.  387, 

\{jJiA,  A^  ^  aK  0^  JU\i^,^\A£iu{_^^  ' 


516  DERIVATIVE  TITLES  (Part  2 

Mr.  Justice  Ostrander,  discussing  the  doctrine  of  implied  reservations, 
quoted,  with  approval,  the  following  general  rule  of  easements : 

*  'It  is  a  general  rule  of  the  law  of  easements  that  where  the  owner 
of  two  tenements  sells  one  of  them,  the  purchaser  takes  the  portion  sold 
witli  all  the  benefits  and  burdens  which  appear  at  the  time  of  the  sale 
to  belong  to  it  as  between  it  and  the  propertv  which  the  vendor  retains. 
Seymour  v.  Lewis,  13  N.  J.  Eq.  439,  78  Am.  Dec.  108.  Kvery  grant 
of  a  thing  naturally  imports  a  grant  of  it  as  it  actually  exists.  United 
States  V.  Appleton,  1  Sumn.  502,  Fed.  Cas.  No.  14,463." 

Mr.  Justice  Selden,  in  speaking  of  this  rule,  said: 

"This  is  not  a  rule  for  the  benefit  of  purchasers  onlv.  but  is  entirely 
reciprocal.  Hence,  if.  instead  of  a  benefit  conferred,  a  burden  has  been 
irnposed  upon  the  portion  sold,  the  purchaser.  provideH  the  marks^of 
this  burden  are  open  and  visible,  takes  the  property  with  the  servitude 
ujpon  it."    Lampman  v.  Milks,  21  N.  Y.  505. 

If  we  are  to  take  the  foregoing  rule  as  our  guide  in  determining  this 
case,  I  am  very  firm  in  the  conviction  that  defendants  took  the  deed  of 
the  premises  burdened  with  the  sewer.  In  arriving  at  this  conclusion, 
the  distinction  made  by  Mr.  Justice  Brooke,  in  his  opinion,  between  im- 
plied grants  and  implied  reservations,  has  not  been  overlooked.  Al- 
though  there  is  a  difiference  of  opmion  in  the  cases  as  to  the  degree  of 
necessity  required  to  create  them,  the  better  rule  seems  to  be,  andjlie 
one  supported  by  the  weight  of  authority  is,  that  a  reasonable  necessity 
is  sufiicient  to  raise  an  impliedgi^nt :  whereas,  a  strict  necessity  is  nee- 


essary  to  raise  an  implied  reservation^  This  court  has  adopted  the 
strict  necessity  rule  i^Tovell  v.  Ei-igritV157  Mich.  419,  122  N.  W.  101. 
The  question  therefore  arises  whether  the  rirrnmstances  of  this  case 
are  such  as  to  bring  it  within  the  rule  of  strict  necessity.  A  study  of 
the  record  has  persuaded  me  that  they  do.  To  establish  her  case  it 
was  necessary  for  complainant  to  show  that  the  easement  claimed  jaas 
apparent,  continuous,  and  strictly  necessary. 

"^  vVas  the  easement  apparent .''      Apparent  easements"  have  been  de- 

^  fined  to  be  those  the  existence  of  which  appears  from  the  construc- 

'^'''^"'*''**^  I  tion  or  condition  of  one  of  the  tenements  so  as  to  be  capable  of  being 

^IxyytA.'t'vS'K  .     \seen  or  known  on  inspection.     10  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p. 

v  405.    To  this  class  of  easements  belongs  the  bed  of  a  running  stream. 

r)  an  overhanging  roof,  a  pipe  for  carrying  water,  a  drain,  or  a  sewer. 

Fetters  v.  Humphreys,  18  N.  J.  Eq.  262.  And  the  mere  fact  that  a 
drain  or  aqueduct,  as  the  case  may  be,  is  concealed  from  casual  vision, 
does  not  prevent  it  from  being  "apparent"  in  the  sense  in  which  that 
word  is  used  in  that  connection.  Larsen  v.  Peterson,  53  N.  J.  Eq.  88, 
30  Atl.  1094. 

Defendant  testified  that  he  did  not  know  that  the  sewer  extended 
through  the  premises  conveyed  to  him.  If  he  had  no  actual  knowledge, 
he  djd  have  constructive  knowledge  of  that  fact.  He  had  owned  for 
upwards  of  25  years  premises  side  by  side  with  the  premises  in  ques- 
tion, with  like  improvements.    He  knew  there  was  a  sewer  which  served 


Ch.  4)  CREATION  OF  BASEMENTS  BY  IMPLICATION  51T 

complainant's  premises  because  he  had  the  front  portion  of  them  under 
lease  nearly  two  years  before  he  purchased  the  rear  portion,  and  at  the 
time  there  were  five  water-closets  in  the  portion  he  had  under  lease. 
He  knew  that  the  sewer  from  his  own  premises  was  discharged  into  the 
Farmer's  alley  sewer,  and  must  have  known  that  there  was  no  other 
sewer  into  which  it  could  be  discharged  and,  if  he  did,  it  would  not  be 
unreasonable  to  assume  that  he  knew  the  same  thing  was  true  of  com- 
plainant's premises.  On  one  occasion,  prior  to  his  purchase,  a  portion 
of  the  floor  in  the  rear  part  was  taken  up,  which  disclosed  the  sewer, 
and  defendant  was  present  at  that  time.  Defendant  had,  before  pur- 
chasing  the  property,  talked  and  planned  with  complainant's  husband 
about  building  a  theater  where  he  has  since  erected  one,  and,  in  doing 
so,  undoubtedly  considered  the  question  of  plumbing  among  other  ques- 
tions of  construction  and  arrangement.  A  knowledge  of  these  facts 
was  sufflcient  in  the  law  to  put  defendant  upon  inquiry  and  to  charge 
him  with  notice  that  the  sewer  traversed  that  portion  of  the  premises 
purchased  by  him. 

Is  the  easement  continuous?    The  sewer  had  been  in  existence  for 


-J 


^20  years,  was  of  a  permanent  nature,  was  in  use  at  the  time,  and  was 
susceptiSTe  of  being  used  and  enjoyed  without  making  an  entry  on  de- 
fendant's  premises,  except  for  the  purpose  of  repair.  These  facts 
would  clearly  bring  it  within  the  definition  of  a  "continuous  easement." 
Larsen  v.  Peterson,  supra. 
'♦.^y  Is  the  easement  strictlv  necessary  to  the  enjoyment  of  complainant's 

^  Y  premises?  The  sewer  in  Farmer's  alley  is  the  only  one  aypil^blp  fnr 
•****»  .  her  use.  The  city  engineer  testified  that  one  might  be  constructed  to 
l^^  \.  De  Visser  alley,  but  that  it  would  be  impracticable  for  the  reason  that, 
-^  where  it  would  discharge  into  that  sewer,  it  would  be  only  18  inches 
underground.  The  topography  of  that  part  of  the  city  is  such  that  no 
other  sewer  can  be  constructed  which  will  serve  these  premises  without 
a  prohibitive  expense.  A  cesspool  was  suggested  by  complainant;  but 
the  city  authorities  would  not  permit  it.  She  then  made  an  efiiort  to 
byy  the  right  of  her  neig[-hbor  on  the  north  to  go  through  the  partition 
wall  and  connect  with  his  sewer^  which  also  discharges  into  the  Far- 
mer's alley  sewer;  but  to  this  her  neighbor  would  not  consent.  We 
have  then  a  situation  where  complainant  must  be  permitted  to  use  the 
sewer  which  has  served  her  premises  for  20  years,  if  her  building  is  to 
have  any  sewer  service.  If  this  situation,  which  nature  has  so  fashion- 
ed that  the  sewage  can  be  directed  only  in  the  direction  of  Farmer's 
alley,  does  not  bring  it  within  the  rule  of  strict  necessity,  it  would,  in- 
deed, be  difficult  to  suggest  one.  If  greater  exigency  than  here  exists 
is^required  before  the  strict  necessity  rule  can  apply,  there  would  be 
little  use  for  the  existence  of  the  rule,  as  its  use  would  be  so  infrequent 
a^o  render  it  useless. 

In  my  opinion,  the  trial  court  found  his  way  to  a  very  equitable  ad- 
justment of  the  entire  matter,  and  I  think  his  decree  should  be  affirmed. 
Moors,  J.,  concurred  with  Bird,  J. 


518 


DERIVATIVE  TITLES 


(Part  2 


««< 


BUSS  V.  DYER. 
(Supreme  Judicial  Court  of  Massachusetts,  1878.    125  Mass.  287.) 

Tort  for  tearing  down,  refuainf^  ^^  ^f^^^uld-  Siud  preventing  the  ijjain- 
tiff  from  rebuilding,  a  chimney,  in  which  the  plaintiff  claimed  an  ease- 
ment. Writ  dated  March  16,  1875.  Trial  in  the  Superior  Court,  be- 
fore Pitman,  J.,  who  allowed  a  bill  of  exceptions  in  substance  as  fol- 
lows: 

The  plaintiff  introduced  evidence  tending  to  prove  that  previously 
to  July  12,  1844,  John  E.  Thay£j:_and  Nathaniel  Thaver  biiilt_aj2lork 
of  five  wooden  houses  on  land  owned  by  them  on  Meridian  Street.  East 
Boston :  that  these  houses  were  then  or  afterwards  numbered  from  61 
to  69  on  said  street,  inclusive ;  that  the  chimney  in  question,  at  the  lime 
tlie  block  was  built,  was  placed  between  the  houses  numbered  63  ajid 
65^  but  whollv  upon  the  premises  of  No.  65.  for  the  use  of  both  houses, 
and  was  constructed  with  connections  or  stove-holes  for  each  house; 
that  on  July  12,  1844,  the  Thayers  conveyed  by  simultaneous  cL|^ds 
(which  contained  covenants  against  all  incumh];g^ps  made  or  suft'ered 
by  them)  tlie  premises  No.  63  to  QHver  Lewis,  and  the  premises  No._65 
to  Martin  Lewis,  both  deeds  describing  the  premises  by  metes  and 
bounds ;  that  by  mesne  conveyances  the (^ijj^iff) became,  on  March  5, 
Ib/Jpthe  owner  of  the  premises  No.  63 :  that  on  November  14,  1874, 
the  chimney  in  question  was  torn  down  by  the  ^efgndant,  (to  whom 
the  house  No.  65  was  conveyed  on  October  7,  1874,  by  the  heirs  of 
Martin  Lewis.)  and  was  never  rebuilt ;  and  that  the  defendant  pre- 
vented the  plaintiff'  from  rebuilding,  and  refused  to  allow  him  to  re- 
build it.  In  none  of  the  deeds  or  mesne  conveyances  above  ceferjed 
to;  was  any  specific  mention  made  of  any  ri^ht  to  use  the  chimHeyJn 
questio_n_^thoug[h  in  each  the  premises  were,  ror^veved  with  "all  rio-hts-. 
easements,  privileges  and  appurtenances  to  ^he  said  land  belonging." 
The  plaintiff'  claimed  no  right  to  use  the  chimney  by  prescription. 

For  the  purpose  of  showing  that  a  right  to  use  the  chimney  passed 
by  the  deed  from  the  Thayers  to  Oliver  Lewis,  by  implication,  as  an 
appurtenance  to  the  house  on  the  premises  so  conveyed,  the  plaintiff 
introduced  evidence  tending  to  show  that,  at  the  time  Oliver  Lewis 
became  the  owner  of  the  premises  No.  63,  a  suitable  chimney,  which 
would  be  a  substitute  for  the  chimney  in  question,  could  not  be  built 
wholly  upon  his  premises  at  a  reasonable  j:ost  and  expense ;  but  this 
was  contradicted  by  the  defendant.  As  bearmg  upon  this  question, 
evidence  was  introduced  by  both  parties  to  show  what  would  be  the 
cost  and  expense  of  building  such  a  chimney  at  the  tirhe  of  the  trial  and 
at  the  time  when  the  chimney  was  torn  down. 

For  the  purpose  of  showing  that  the  right  to  use  the  chimney  in 
question  had  not  been  lost  or  extinguished,  the  plaintiff  introduced  ev- 
idence to  prove  that  the  chimney  and  the  houses  of  himself  and  the 
defendant  were  in  good  condition  up  to  the  time  when  the  chimney  was 


Ch.  4)  CREATION  OF  EASEMENTS  BY   IMPLICATION  519 

torn  down :  that  they  had  not  been  destroyed  by  the  elements  or  mere 
lapse  of  time;  and  that  they  were  not  in  such  a  condition  that  they 
needed  to  be  rebuilt  from  the  bottom;  and  the  defendant  introduced 
evidence  to  prove  the  contrary,  and  that  the  plaintiff  could  have  built  a 
suitable  chimney  upon  his  own  estate  as  a  substitute  for  the  one  torn 
down  at  a  very  small  cost,  especially  soon  after  the  chimney  had  been 
torn  down. 

The  plaintiff  asked  the  judge  to  rule  as  follows:  "If  the  plaintiff 
ac quired  a  right  to  use  tlie  chimney  in  quesLiOn-^nder  the  deed  from 
the  Thayers  to  Oliver  Lewis,  such  right  so  acquired  was  not  lost  or 
terminated  until  both  the  chimney  and  the  houses  of  the  plaintiff  and 
defendant  were  destroyed  by  the  elements  or  mere  lapse  of  time,  or 
were  in  such  a  condition  that  they  had  to  be  rebuilt  from  the  bottom." 

The  judge  refused  so  to  rule ;  but  instructed  .the  jury  that  if  such  a 
right  was  acquired  by  the  plaintiff  through  the  deed  from  the  Thayers 
to  OHver  Lewis,  yet  if  the  chimney  at  the  time  it  was  torn  down  was 
unsafe  and  needed  to  be  rebuilt  from  the  bottom,  the  defendant  had 
a  right  to  tear  it  down,  and  the  plaintiff  could  not  recover.     No  in- 
structions were  given  as  to  whether  or  not  the  condition  of  the  houses 
of  the  plaintiff  and  defendant,  or  either  of  them,  had  anything  to  do 
with  the  duration  of  the  alleged  easement,  or  right  to  use  the  chimney 
in  question,  and  the  instructions  given  were  objected  to  only  on  the 
ground  of  that  omission.    The  jury  were  fully  instructed  on  the  other 
questions  of  law  in  the  case;  and,  among  other  things,  were  instructed     » 
that  no  servitude,  as  claimed,  could  be  created  by  implication  of  law  l-M*'*'***'''*^ 
unless  there  was  a  reasonable  necessity  therefor :  and  that  if  the  plain-^f^t^^  "jf^ 
tiff,'  with  reasonable  labor  and  expense,  could  have  built  a  suitable  v 

chimney  on  his  own  estate,  he  rniild  nnf  rlnim  ^,  right  to  use  that  upon 
the  defendant's  premigpc; 

The  jury  were  further  instructed  to  answer  the  following  questions, 
and  that  if  the  second  question  was  answered  in  the  afifirmatiye  they 
need  not  answer  the  third  question,  but  should  return  a  verdict  for  the 
defendant:    "1.  Did  the  houses  now  occupied  by  the  parties  respec- 
tively exist  upon  the  estates  at  the  time  of  the  deeds  from  the  Messrs. 
Thayer?    2.  Could  the  pininfiff  at  a  rpa^^nnahlp  cost  have  built  a  suita- 
ble chimney  upon  his  own  estate,  as  a  substitute  for  the  one  he  claimed 
to  use  on  the  estate  of  the  defendant?    3.  Was  the  chimney  in  question     *^ 
so  defective  and  unsafe  as  to  require  the  defendant  to  take  it  down?" 
The  jury  answered  the  first  and  second  questions  in  the  affirmative;    ^         ^ 
and  returned  a  verdict  for  the  defendant.     The  plaintiff  alleged  ex-     T^Ol    4-*^ 
ceptions. 

SouLE,  J.  The  deed  of  the  Thayers,  under  which  the  plaintiff 
claims,  was  made  and  delivered  when  they  were  owners  of  the  prem- 
ises of  the  defendant.  It  makes  no  mention  of  any  rights  in  the  chim- 
ney on  the  adjoining  premises.  Their  deed  of  the  defendant's  premises, 
given  at  the  same  time,  contains  covenants  against  incumbrances  made 
or  suffered  by  the  grantors,  and  of  warranty  against  all  persons  claini- 


^iC-^ 


p^ 


520  DERIVATIVE  TITLES  (Part  2 

ing  under  them.  Each  deed  describes  the  lot  of  land  conveyed  by  metes 
and  bounds,  without  mentioning  any  buildings.  The  grantors  having 
built  the  houses  and  the  chimney,  and  being  owners  of  both  parcels, 
these  covenants  are  as  strong  an  expression  of  intention  to  convey  the 
defendant's  premises  free  of  the  easement  claimed  by  the  plaintiff  as 
covenants  of  general  warranty  would  have  been.  The  words,  "and  all 
rights,  easements,  privileges  and  appurtenances  to  the  said  land  belong- 
ing," in  the  deed  of  the  plaintiff's  premises,  are  of  no  effect  to  carry 
the  easement  in  question,  because  no  easement  existed,  while  the  fee  of 
oth  parcels  was  held  by  the  same  owners.  Ammidown  v.  Granite 
Bank,  8  Allen,  285.  Moreover,  the  title  conveyed  by  that  deed  is  not 
older  than  the  title  conveyed  by  the  deed  of  the  defendant's  premises, 
which  covenants  against  any  incumbrance  created  by  the  grantors.  __If, 
therefore,  an  easement  .to  use  the  chimney  was  created  in  favor  of  the 
premises,  of  the  plaintiff,  it  was  created  by  implication,  as  being  abso- 
lutely necessary  to  the  enjoyment  of  the  estate. 

We  are  aware  that  it  has  been  held  in  some  English  cases,  that  a  deed 
of  premises  carries  the  right  to  continue  to  enjoy,  as  easements,  all 
privileges  or  conveniences  in  and  upon  adjoining  lands  of  the  grantor, 
which  were  apparent,  and  had  been  used  by  the  grantor  in  connection 
with  the  premises  before  the  conveyance ;  that  the  conveyance  is  a  con- 
veyance of  the  premises  "as  they  are."  A  leading  case  to  this  eff'ect  is 
Pyer  v.  Carter.  1  H.  &  N.  916.  Similar  doctrine  has  been  held  in  New 
York.  Lampman  v.  Milks,  21  N.  Y.  505.  We  do  not  regard  this  as  a 
correct  view  of  the  law. 

It  is  a  well  established  and  familiar  rule  that  deeds  are  to  he  rnn- 
strued  as  meaning  what  the  language  employed  in  them  imports,  ^nd 
that  extrinsic  evidence  may  not  be  adduced  to  contradict  or  affecLiliem. 

nd  it  would  seem  that  nothing  could  be  clearer  in  its  meaning  than  a 
deed  of  a  lot  of  land,  described  by  metes  and  bounds,  with  covenants 
of  warranty  against  incumbrances.  The  great  exception  to  the  applica- 
tion of  this  rule  to  the  construction  of  deeds  is  in  the  case  of  ^Y^^iJ^ 
necessity,  where,  by  a  fiction  of  law,  there  is  an  implied  reservation  or 
grant  to  meet  a  special  emergency,  on  grounds  of  public  policy,  as  it  has 
been  said,  in  order  that  no  land  should  be  left  inaccessible  for  pur- 
poses of  cultivation.  This  fiction  has  been  extended  to  cases  of  ease- 
ments of  a  different  character,  where  the  fact  has  been  established  that 
the  easement  was  necessary  to  the  enjoyment  of  the  estate  in  favor  of 
which  it  was  claimed,  /y^^j^^t^^ 

In  this  Commonwealth,  grams  by  implication  are  limited  to  cases  of 
stricj^  ng(^^ity.  Carbrey  v.  Willis,  7  Allen,  364,  83  Am.  Dec.  688,  and 
cases  cited;  Randall  v.  McLaughlin,  10  Allen,  366.  The  case  of  Pyer 
v.  Carter  was  denied  by  Lord  Chancellor  Westbury  in  Suffieli  v. 
Brown,  4  De  G.,  J,  &  S.  185,  which  has_been  since  recognized  as  con- 
taining~the  correct  doctrine.-  Crossley  v.  Lightowler,  L.  R.  2  Ch.  478; 
Watts  V.  Kelsol^TLTRTa  Ch.  166. 


Ch.  4)  CREATION   OF   EASEMENTS  BY   IMPLICATION  521 

The  case  seems  to  have  been  tried  in  the  Superior  Court  oti  the  as- 
sumption by  both  parties  that  the  obstacles,  if  any,  to  the  erection  of 
a  chimney  on  the  plaintiff's  premises,  were  the  same  when  the  Thayers 
conveyed  as  when  the  chimney  m  question  was  taken  down,  and  the 
question  to  the  jury,  and  the  instructions,  appear  to  have  been  framed 
in  accordance  with  that  assumption,  and  without  any  objection  or  sug- 
gestion to  the  contrary  by  the  plaintiff.  We  cannot,  therefore,  consider 
the  objection  now  made,  for  the  first  time,  that  the  question  of  neces- 
sity was  to  be  detennined  by  the  state  of  things  existing  when  the  con- 
veyance was  made  by  the  Thayers, 

In  this  view  of  the  case,  it.  appears  that  the  jury  found  that  the  use 
of  the  chimney  was  not  npreg;sarv  to  the  enjoyment  of  the  premises 
owned  by  the  plaintiff.  This  being  so,  no  easement  in  ting  (^j^jrpnpv  wa^. 
reserved  by  implication  in  the  deed  to  the  detendanFs  o-ranto?-.  and  the 
defendant,  in  destroying  the  chimney,  merely  exercised  a  right  of  own- 
ership^ ~~ 

It  is  unnecessary,  therefore,  to  consider  the  question  raised  by  the  re- 
fusal to  give  the  instruction  asked  for  by  the  plaintiff.  On  the  facts 
found  by  the  jury,  no  easement  in  favor  of  the  premises  of  the  plaintiff 
having  been  created,  the  ruling  as  to  how  such  easement  could  be  de- 
termined, if  it  existed,  became  immaterial. 

.      TOOTHE  V.  BRYCE. 

(Court  of  Chancery  of  New  Jersey,  1S92.     50  N.  J.  Eq.  5S9,  25  Atl.  182.) 

On  order_to  show  cause  why  an  injunction  should  not  issue. 

Heard  upon  bill  and  answer  and  accompanying  affidavits. 

The  complainant,  by  his  bill,  seeks  to  establish  and  protect  his  right 
to  the  benefit  of  a  flow  of  water  to  his  premises  from  the  defendant's 
premises,  through  two  several  pipes  laid  underground  and  forced^JUC 
by  two  hydraulic  rams,  situate,  with  the  spring  that  drives  them,  on 
the  defendant's  prei-nise.-Y. 

The  facts  as  they  appear  in  the  pleadings  and  affidavits,  or  are  ad- 
mitted by  the  parties,  for  the  purposes  of  this  motion  only,  are  as 
follows :    Before  and  on  the  13th  of  April,  1892,  the  defendant  was    j4    jJ       6 
the  owner  of  a  tract  containing  about  forty-five  acres,  which  comprised  tAVp*  •   *|*^ 
both  tenements,  situate  in  Madison,  Morris  county.  New  Jersey,  and  /l.^-,^  JIt^ 
on  that  day"  entered  into  a  written  contract  with  the  complainant,  by 

14  Still  well  V.  Foster,  80  Me.  333,  14  Atl.  731  (1S8S),  ace.  In  Bussmeyer  v. 
Jablonsky,  241  Mo.  681,  145  S.  W.  772,  39  L.  R.  A.  (N.  P.)  549,  Ann.  Gas.  1913C, 
1104  (1912),  the  court  helfl  that  nn  p.nspmpnf.  fhert;^  plaimed  had  not  hppn  pi-e:iti^fl 
by  implied  grant,  do  showing  that  there  was  any  ''reasonable"  aecessity  therg- 
fgr  having  been  niaae,  thougn  tne  evidehce  prob;il)iy  ^sLablislied  that  tne  ngnt 
pinirfied  was  a  nnnvenience.  So,  also,  in  ijanatora  v.  jkoss.  Yt3  i\.  Jdl.  4V(>,  8fAtL  ^  * 
936,  42  L.  R.  A.  (N.  S.)  629  (1912).  oljJ^^^*^ 


dfc^ 


522  DERIVATIVE  TITLES  (Part  2 

which  the  defendant,  in  consideration  of  $13.000,  ag^reed  to  sell  and 

convey  to  complainant,  and  complainant  agreed  to  purchase  and~pay 

that  price  for  the  tract  in  question,  consisting  of  forty-five  acres  and 

twenty-three  one-hundredths  of  an  acre,  excepting  thereout  ajiouse  and 

HjtA/^  A  barn  and  lot  whereon  they  stood,  containing  one  acre,  the  deed  of  con- 

^^^      M^^  veyance  to  be  delivered  and  the  purchase-money  paid^  on  the  lalh-dav 

tjy/^^^^A,       of  May,  at  eleven  o'clock  in  the  morning,  at  a  specified  place  in  New 

iJk  '  At  the  date  of  the  contract  there  were  upon  the  whole  tract  two 

\  dwellings,  two_barns,  and  a  green  or  hot-house,  a  spnng  of  water  and 

A^    /  two  hydrauhr  rams  driven   hy  it*;  water';^   with   a  pipe  leading   from 

each,  one  to  the  green-house  and  one  to  one  of  the  barns.  One  dwell- 
ing and  one  barn  and  the  green-house  were  on  the  partcontractedjo 
be  conveyed ;  the  other  dwelling  and  barn,  the  sprmg  and  rams  were 
on  the  lot  of  one  acre  reservedT  Included  in  the  sale  were  a  lot  of 
hot-house  plants  in  the  hot-house. 

At  and  before  the  date  of  the  contract  the  water  was  flowing  con- 
tinuously at  both  the  barn  and  green-house,  in  the  latter  of  whirh  wprp 
the  hot-house  plants.  The  water  was  discharged  at  the  barn  into  an 
open  trough  from  which  the  cattle  and  horses  drank,  and  at  the  green- 
house into  a  tank  from  which  it  was  used  in  watering  the  plants.  This 
flow  was  observed  by  the  rnmplainant,  and  he  knew  it  was  due  to  thej^c- 
tjon  of  a  ram  (he  supposed  there  was  but  one)  on  the  lot  reserveiLand 
such  fl ow  formed,  in_  co.mpl_ai nantj.  mind,  a  feature  _ q£ _ vaJxi e  in  the 
premises.  The  pipes  and  flow  of  water  to  the  barn  had  existed  for 
several  years,  but  that  to  the  green-house  had  been  in  use  for  less  than 
two  years.  The  ram  which  supplied  it  had  been  in  place  and  use  for 
many  years,  and  carried  the  water  in  a  pipe  along  the  road  in  front 
of  the  premises  in  question  to  a  property  adjoining  it  on  the  other  side, 
which  property  was  sold  by  the  defendant  in  1890  to  another  party,  and 
the  flow  of  water  to  it  was  cut  oflF  and  the  pipe  turned  from  the  road 
up  to  this  green-house,  and  was  in  use  there  from  that  time  on. 

The  corporate  authorities  of  Madison  have  recently  erected  water- 
works for  the  use  of  the  town  and  its  inhabitants,  but  no  main  has  as 
yet  been  laid  in  the  street  in  front  of  these  premises. 

The  negotiations  for  the  purchase  and  sale  were  carried  on  between 
the  complainant  in  person  and  an  agent  of  the  defendant,  and  n 
was  sajdjjy  either  in  their  course  about  th^  flow  nf  yater.  Such" flow 
contniuedup  to  the  date  of  the  delivery  of  the  deed.  Before  ten 
o'clock  on  the  morning  of  that  day  defendant  directed  his  employee 
in  charg^e  of  the  premises  to  stop  the  operation  of  the  rams,  and  then 
proceeded  by  train  to  New  York  to  deliver  the  deed,  which  was  done 
about  eley^jiVlnek  The  man  in  charge  stopped  the  ram  supplying 
the  barn  at  once,  but  left  the  one  supplying  the  green-house  running 
until  three  o'clock  in  the  afternoon.  So  that  in  point  of  fact  the  wa- 
ter was  probablv  not  running  to  the  barn  at  the  moment  the  deed  was 
delivered^but .was.j'jyLOniiig_iQ_Uie_^eer>House.    No  notice  was  gi ven 


Ch.  4)  CREATION   OF   EASEMENTS  BY   IMPLICATION  523 

to  the  complainant  at  the  delivery  of  the  deed  that  the  flow  of  the  water 
had  been  stopped,  nor  was  any  mention  made  of  it  by  either  party. 
Tiie^deed  contained  the  usual  verbiage  as  to  appurtenf^"?^.'',  inelud- 
ing"waYa>-WAters,  privileges/'  &c. 

The  springs  driving  the  rams  are  about  fifteen  feet  lower  than  the 
barn  and  green-house,  so  that  the  water  would  not  run  naturally  t^^ 
either.     The  difference  in  height  between  the  spring  and  the  rams 
does  not  appear. 

The  parties  agreed  that  the  court  should  act  upon  its  personal  knowl- 
edge of  the  peculiarities  of  hydraulic  rams,  which,  so  far  as  necessary 
for  present  purposes,  are  as  follows :  By  the  use  of  this  machine  the 
power  due  to  the  fall  from  a  given  height  of  a  given  quantity  of  water  is 
utilized  to  lift  a  comparatively  small  fraction  thereof  to  a  height  greater 
than  the  source  or  head.  The  effect  of  the  machine  is  precisely  the 
same  as  would  be  that  of  a  water  wheel  driving  an  ordinary  pump. 
The  advantage  of  the  use  of  the  ram  is  its  extreme  simplicity  and  dur- 
ability._  It  works  automatically  and  in  theory  should  run  without  stop- 
ping or  touch  by -the  hand  of  man  until  its  parts  were  actually  worn  out. 
It  is,  however,  liable  to  stop  and  requires  the  hand  of  man  to  start  it 
again.  I'his  liability  is  due  to  several  causes,  none  of  which  are  of  any 
importance,  and  all  can  be  guarded  against  by  proper  care  in  setting 
it  and  in  preventing  substances  other  than  water  from  passing  through 
it,  except  one,  viz.,  a  necessary  part  of  the  machine  is  a  chamber  of 
confined  air  which  acts  as  a  cushion.  This  air  comes  in  contact  with 
and  is  liable  to  be  absorbed  by  the  water  and  exhausted,  and  when  the 
air-chamber  becomes  filled  with  water  the  ram  works  defectively  and 
is  liable  to  stop.  The  tendency  of  the  air  to  be  exhausted  varies  with 
the  character  of  the  water  and  the  height  or  head  to  which  it  is  lifted. 
If  the  water  is  lifted  to  a  great  height  there  is  a  corresponding  pres- 
sure of  the  water  upon  the  air  and  the  absorption  of  the  air  by  the  wa- 
ter is  increased  thereby,  but'  with  a  small  height  to  lift  against,  like 
fifteen,  twenty  or  thirty  feet,  rams  may  run  for  weeks  and  months 
wTthouT  stop£mo[.  The  process  of  recharging  the  airchamber  with 
air  is  very  simple  and  may  be  done  by  any  person  in  a  few  minutes. 
An  hydraulic  ram,  properly  set,  may  run  for  one  or  more  years  with- 
out any  repair,  and  the  operation  of  repair  or  renewal  is  very  simple. 

Pitney,  V.  C.  The  complainant  rests  his  right  to  the  continued 
flow  of  the  water  upon  the  fact  that  such  flow  was  apparent  and  con- 
tinuous at  the  time  of  the  purchase,  and  constituted  a  valuable  adjun^ 
to  the  premises,  rendering  their  use  more  beneficial  and  valuable. 

Against  the  case  thus  made  defendant  makes  three  points — first, 
that  the  use  of  the  water  in  the  way  described  was  not  necessary  to  Cj  j/jf  Aiff^ 
the  enjoyment  of  the  premises;  second,  that  it  was  not  in  actual  use  ^^*^'^'^' 
at  the  moment  when  the  title  passed ;  third,  that  it  was  not  in  its  na- 
ture continuous,  since  the  water  did  not  run  by  gravity,  but  by  machin- 
ery, which  required  the  intervention  of  the  hand  of  man,  upon  the  land 
of  the  grantor,  the  defendant 


524  '  DERIVATIVE  TITLES  (Part  2 

I.  Asjto  the  element  of  necessity.  I  think  some  inaccuracy  of 
thought  and  expression  has  arisen  in  the  discussion  by  bench  and  bar  of 
this  doctrine  of  the  creation  of  an  easement  by  impHcation  upon  the 
severance  of  a  tenement,  as  to  the' importance  ot  the  element  of  neces- 
sity, by  faihng  to  distinguish  between  that  class  of  cases  where  it  has 
been  held  or  claimed  that  an  easement  is  reserved  by  implication  in 
favor  of  that  portion  of  the  tenement  which  is  retained  by  the  grantor 
in  and  upon  that  portion  conveyed,  and  that  other  class  of  cases  where 
it  has  been  held  that  an  easement  was  granted  in  favor  of  the  part  con- 
veyed in  and  upon  the  part  reserved.  In  the  former  class  of  cases  the 
grantor  is  usually  claiming  an  easement  in  direct  derogation  of  his 
own  grant,  while  in  the  latter  it  is  well  held  to  be  in  accordance  with, 
and  to  flow  naturally  by  implication  from,  his  grant. 

In  fact  it  has  been  suggested  that  the  grant  in  such  cases  is  not  by 
implication,  but  that  the  quasi-easement  passes  with  the  quasi-dominant 
tenement  as,  in  substance,  a  part  of  the  thing  conveyed,  and  without 
any  regard  to  the  element  of  necessity.  On  the  other  hand,  in  the  case 
of  a  reservation,  it  has  been  held  that  there  can  be  no  •implied  reserva- 
tion of  an  easement  in  theland  granted  when  the  grantor  has  conveyed, 
as  he  generally^does.  all  his  riglit,'^title  and  interest  therein,  except  such 
gmi  easement  as  is  absolutely  necessary  to  any  enioyment  of  it  whatever, 
as  m  the  case  of  a  way  of  necessity.  Gale  &  W.  Easem.  *72 ;  Godd. 
^asenTcAm.  Ed.)  266,  267;  Nichols  v.  Luce,  24  Pick.  (Ma'ss.)  102.  35 
Am.  Dec.  302;  Oliver  v.  Pitman,  98  Mass.  46;  Washb.  Easem.  *163, 
*164,  and  cases. 

Toi_permit_the  grantor  to  claim  such  reservation  is  to  permit  him 
to  derogate  from  his  own  grant.  So  rigid  was  this  rule  held  that  in  the 
older  cases  the  reservation  of  a  right  of  way  to  and  from  the  close 
retained  by  the  grantor  out  of  the  conveyance  of  the  land  surround- 
ing it  was  put  on  the  ground  of  the  interest  that  the  public  had  that 
the  close  so  surrounded  should  not  be  unused  and  unproductive.  The 
conveyances  in  common  use  in  this  country  contain  an  express  con- 
veyance of  all  the  right,  title  and  interest  of  the  grantor  in  andJ^ 
the  premises  conveyed,  and  it  is  difficult  to  perceive  on  what  ground 
short  of  absolute  necessity  any  easement  could  be  reserved. 

This  distinction  between  a  grant  and  a  reservation  by  implication 
seems  to  be  founded  in  logic  and,  as  will  appear  further  on,  is 
now  thoroughly  established  in  the  English  tribunals,  and  it  seems  to 
me  to  furnish  the  true  test  as  to  the  value  and  importance  of  the  ele- 
ment of  necessity  in  the  establishment  of  easements  upon  the  division 
of  tenements. 

My  examination  of  the  authorities  has  led  me  to  the  conclusion  that 
where  the  right  to  the  easement  is  based  upon  the  ground  that  it 
passes^,  as  in  substance,  a  valuable  adjunct  to  the  land  conveyed,  the 
eleni£nt_of^ece^sity  is  not  a  requisite,  and  to  use  the  word  "neces- 
sary" in  connection  with  it  is  to  misuse  it.  In  saying  this,  I  may 
say  that  I  am,  in  appearance  at  least,  going  contrary  to  what  has 


Ch.  4)  CREATION   OP   EASEMENTS  BY   IMPLICATION  525 

been  said  and  decided  in  many  cases;  but  I  think  that  an  exami- 
ination  of  them  will  show  that  in  most,  if  not  all,  of  those  instances 
where  the  case  was  that  of  an  implied  grant  of  an  easement  in  rnnner- 
tion  with  the  conveyance  of  a  quasi-dominant  tenement,  the  so-called 
"necessity"  upon  which  the  judges  relied  was,  in  fact,  no  necessity  at 
all,  but  a^rnere  beneficial  and  valuable  convenience,  and  that  this  eleva- 
tion of  a  mere  convenience  to  the  level  of  a  necessity  was  the  result 
of  an  attempt  to  obliterate  the  distinction  between  an  implied  grant 
and  an  implied  reservation,  before  referred  to.  and  to  place  implied 
reservations  and  implied  grants  upon  the  same  footing,  and  to  hold 
that  upon  the  severance  of  a  tenement  one  part  of  which  had  been 
subjected  to  a  quasi-servitude,  which  was  continuous  and  apparent,  in 
favor  of  the  other,  the  easement  would  be  preserved,  whether  it  be  by 
grant,  when  the  dominant  tenement  is  conveyed,  or  by  reservation, 
when  the  servient  tenement  is  conveyed ;  and  as  the  latter  could  only 
occur  where  the  element  of  necessity  was  present,  it  was  held  that  such 
element  must  also  be  present  in  the  former  case.^®     *     *     * 

These  cases  in  our  own  state  have  probably  established  the  doctrine 
here — certainly  in  this  court — that  in  these  cases  of  ^B^,^^^"ent  ^^^ 
continuous  easements,  upon  the  severance  of  the  tenement,  a  reserva- 
tionof  a  guasi-easement  will  take  place  on  the  conveyance  of  the  ser- 
vient pa rt_^Yh££ey_erJt  would  pass  by  way,  of  grant  on  the  conveyance 
of  the  dorni'^^"^  PP^ti  ^"d  that  in  each  case  the  eleniejij^ofnecessity  is 
a  requisite.  But  for  myself,  I  desire  to  repeat,  by  way  of  protest,  that 
my  examination  of  the  authorities  has  led  me  to  the  conclusion  that 
this  doctrine  of  rnutuality  is  not  founded  on  solid  ground  and  is  mis- 
chievous in  its  tendencies,  and  also  that  it  is  a  misapplicatiorLj;:^.  tjie 
word  "necessary"  or  "necessity"  to  apply  it  to  such  a  case,  and  leads 
to  uncertainty  and  confusion  in  attempting  to  define  diflferent  degrees 
of  the  element,  when,  in  fact,  strictly  speakmg,  it  is  not  capable  of  be- 
ing graded. 

It  seems  to  me  that  the  proper  inquiry  in  such  cases  is  w)iether  the 
apparent  and  contmuous  easement  in  question  forms  a  part  of  the  ten- 
em_enj;,  and  is  beneficial  to  and  adds  to  its  value  for  use,  and  will  con- 
tinue to  do  so  in  the  futur^,  If  it  is,  then  the  grantee  is,  upon  plain 
principles,  entitled  to  have  it  continued.  He  is.  entitled  to  enjoy  the 
tl]ing  as  it  was  when  he  bought  it,  with  all  its  apparent  appurtenances, 
ifjhose  apparent'appurtenances  are  apparently  permanent,  and  are  use- 
ful and  add  to  its  value. 

■■!».'       I  III      I  "III 

In  tlie  case  in  hand,  I  think  there  can  be  no  doubt  that  the  flow 
of  the  water  at  the  bam  or  stable  and  at  the  green-house  are  val- 
uable additions  to  the  ^Ero2erty^  increase  its  beneficial  use^  and  also 
that  it  is  necessary  in  the  sense  in  which  that  word  has  been  used  in 
that  connection,  and  is  defined  by  Vice-Chancellor  Van  Fleet  in  Kelly 

15  A  portion  of  the  opLnion,  in  wbich  the  court  reviews  many  English  and 
American  cases,  is  omitted. 


526  DERIVATIVE  TITLES  (Part  2 

V.  Dunning,  43  N.  J.  Eq.  62,  10  Atl.  276;  and  I  adopt  the  language 
of  Lord-Justice  Mellish  in  Watts  v.  Kelson,  L.  R.  6  Ch.  App.  166,  above 
quoted,  as  applicable  to  this  case. 

It  would  be  no  answer  to  say,  if  it  were  truf,  thcit  tlip  ^m-nplainant 
may  procure  water  to  supply  these  places  from  the  public  water- 
works at  a  comparatively  trifling  expense.  That  expense,  though 
trifling,  is  continuous,  and  it  was  the  relief  from  its  burden  which 
formed  the  element  of  value  in  the  water  which  was  actually  flow- 
ing- 

II.  The  second  objection  made  presents  little  difficulty.  Complain- 
ant is  clearly  entitled  to  have  the  premises  in  the  condition  which 
they  were  at  the  time  he  made  the  contract — April  13th,  1892.  His 
right  to  them  vested  at  that  date.  As  the  contract  was  positive  and 
binding  on  both  parties — defendant  being  bound  to  convey  and  the 
complainant  to  purchase  and  pay  the  price — the  familiar  rule  in  equity 
is  that  from  that  time  on,  the  premises  in  question  belonged  to  the  com- 
plainant, subject  to  the  lien  of  the  purchase  price,  and  that  the  pur- 
chase price  belonged  to  the  defendant.  It  would  be  monstrnns,  inHeerl, 
to.  hold  that  the  defendant  might,  at  the  very  moment  that  the-cked 
w^  being  dehyered  in  New  York^  by  his  agent  in  Madison  destroy 
an_apparent  and  continuous  easement  and  deprive'^e^'compTMnant 
of  the  benefit  oi_it>- 

Nor  can  the  defendant,  as  the  case  now  stands,  deny  the  right  of 

'  his  agent  to  sign  the  contract  for  him  as  his  agent.     The  execution 

of  the  deed  in  pursuance  of  it  was  in  ratification  and  adoption  of 

^   V        *»        the  previous  contract,  with  all  its  burdens  as  well  as  its  benefit. 

yj  III.  The  third  question  presents  more  difficulty.     Was  the  ease- 

A         ty  ment  in   its  nature  continuous,  considering  the  fact  that  the  water 

*  jT  did  not  run  by  gravity,  in  the  ordinary  sense  of  the  term,  but  was 

Kjr  forced  up  by  a  machine  driven  by  the  power  of  the  fall  of  a  greater 

■'  quantity,  and  that  it  would  be  necessary  for  the  complainant  to  enter 

on  the  servient  tenement  from  time  to  time  to  readjust,  repair  and 

renew  this  machine? 

All  cases  of  this  character  deal  with  artificial  structures,  situate 
in  whole  or  in  part  on  the  servient  tenement,  which  are  liable  to  fall 
into  disorder  and  decay,  and  all  the  adjudged  cases  hold  that  the  owner 
of.  the  dominant  tenement  may  enter  upon  the  servient  tenement  for 
the  purpose  of  repairing  and  renewing  those  artificial  stnirtnrps.  It 
was  so  declared  in  Nicholas  v.  Chamberlain,  and  Mr.  Gale  quite 
properly  calls  this  right  of  reparation  and  maintenance  a  "second- 
ary easement"  (Gale  &  W.  Easem.  *323 ;  Washb.  Easem.  *24,  *25), 
which  is  appurtenant  to  the  primary  or  actual  easement. 

If,  in  the  case  in  hand,  the  water  ran  by  gravity  in  an  artificial 
ohannel,  complainant  would  have  the  right  to  enter  from  time  to 
time  upon  defendant's  land,  and  repair  and  renews  such  part  of  it  as 
was  there  situate.  So  if  the  water — supposing  it  to  be  practicable 
—were  raised  by  a  dam  instead  of  a  ram  tp  the  height  necp«isarY  to 


Ch.  4)  CREATION   OP   EASEMENTS  BY   IMPLICATION  527 

m^l'p  it  f  nvy  |^  tlip  ham  ^nc\  gTPf^n-house,  the  rjcfht  of  reparation  and 
renewal  of  this  dam  y^nnlfl  he  inrln^pf]^  and,  in  such  a  case  as  this,  the 
head  or  power  would  be  employed  to  carry  it. 

These  secondary  easements,  however,  are  not  the  easement  which 
passes  with  the  conveyance  by  implied  grant  because  apparent  and 
continuous.  They  are,  as  before  remarked,  merely  incidents  thereto, 
and,  because  of  their  non-continuous  and  desultory  character,  the 
principal  easement  is  none  the  less  continuous. 

In  this  connection,  what  is  said  by  Mr.  Gale  in  his  treatise  is  not 
without  import  (*50) : 

"An  easement  is  a  quality  superadded  to  the  usual  rights,  and, 
as  it  were,  passing  the  ordinary  bounds  of  property ;  and,  with  the 
exception  of  those  easements  the  enjoyment  of  which  depends  upon 
an  actual  interference  of  man  at  each  time  of  enjoyment,  as  of  a 
right  of  way,^  it  is  attended  with  a  permanent  alteration  of  the  two 
heritages  affected  by  it,  showing  that  one  is  benefited  and  the  other 
burdened  by  the  easement  in  question." 

His  idea  oi  a  non-continuous  easement  is  one  whose  enjoyment  de- 
pends upon  an  actual  interference  of  man  at  each  time  of  enjoyment 
as  in  Polden  v.  Bastard,  supra  [4  Best.  &  S.  257,  L.  R.  (1  Q.  B.)  156]. 
And  it  seems  to  me  that  that  is  the  correct  test,  and  that  the  mer£-  fact 
that  a  machine  is  used  which  is  substantially  self-acting,  and  does  not  re- 
quire the  constant  attention  of  man,  does  not  make  it  non-continuous, 
any  more  than  the  propulsion  of  the  water  by  a  dam  through  an  ar- 
tificial channel  would  have  that  effect.  It  is  said  that  the  owner  of 
the  servient  tenement  will  be  subjected  to  the  servitude  of  a  more 
frequent  entrance  upon  his  land  for  the  purpose  of  adjusting  and  re- 
pairing the  ram  than  he  would  in  case  of  an  artificial  ditch  or  pipe  or 
dam.  But  I  think  the  difference  is  one  of  degree  and  not  of  char- 
acter, and  it  is  hardly  necessary  to  say  that  a  mere  difference  of  de- 
gree will  not  alter  the  case. 

I  will  advise  that  an  injunction  issue.  •  ^  .__^     ,      t    v 

LIQUID  CARBONIC  CO.  v.  WALLACE. 

(Supreme  Court  of  Pennsylvania,  1908.     219  Pa.  457,  68  Atl.  1021,  26  L.  R.  A. 

[N.  S.]  327.) 

Bill_ in  equity  for  an  injunction.     Before  Shafer,  J. 

The  facts  are  stated  in  the  opinion  of  the  Supreme  Court. 

Error  assigned  was  decree  awarding  an  injunction. 

Mitchell,  C.  J.  The  legal  principle  governing  this  case  is  thus 
expressed  in  Grace  M.  E.  Church  v.  Dobbins,  153  Pa.  294,  25  Atl. 
1120,  34  Am.  St.  Rep.  706:  "Where  an  owner  of  land  subjects  part  of 
it  to  an  opjgn.  visible,  permanent  and  continuous  servitude  or  easement 
in  lavor  of  another  part^no^en  aliens  either,  the  purchaser  takes 


i 


528  DERIVATIVE  TITLES  (Part  2 

subject  to  the  burden  or  the  benefit,  as  the  case  may  be."    See,  also, 
Manbeck  v.  Jones,  190  Pa.  171,  42~Atr33d; 

The  facts  are  not  in  material  dispute.  In  1890  Wallace,  one  of  ap- 
pellants.  became  the  owner  of  a  large  lot  of  ground  in  the  twendelh 
ward  of  the  city  of  Pittsburg!  It  was  bounded  by  three  'strppt'TanH 
the  Pennsylvania  Railroad,  but  being  hilly  and  uneven,  access  to  parts 
of  it  was  difficult  or  very  inconvenient.  Wallace  began  to  grade_it, 
and  in  the  course  of  so  doing  roads  were  worn  here  and  there  over 
the  property  by  the  hauling  incident  to  grading,  the  principal  road 
so  worn  or  constructed  being  in  substantially  the  same  position  as 
that  over  which  the  plaintiff  now  claims  a  right  of  way.  In  1891, 
Wallace  conveyed  to  the  plaintiff  a  portion  of  said  tract,  bounded  by 
the  Pennsylvania  Railroad,  two  streets  and  other  lands  of  Wallace 
afterwards  conveyed  to  the  Duquesne  Reduction  Companv.  At  the 
time  of  sale  by  Wallace  to  plamtirf  the  said  road  was  used  upon  the 
ground  and  appellants  admit  that  stone  quarried  upon  other  land  of 
Wallace  and  sold  to  the  plaintiff  was  hauled  down  over  it.  Appellee 
used  it  in  the  erection  of  its  buildings  and  claims  that  it  was  in  gen- 
eral use  by  the  owners  of  the  adjacent  properties  for  access,  and  it 
appeared  that  it  had  continued  in  such  use  until  1906,  when  appellants 
built  a  fenceacFoss  it  and  plaintiff  filed  this  bill. 

The  court  found  that  it  was  the  only  wagon  road  on  the  lot,  and  th^t 
access  from  the  streets  by  which  the  appellee's  lot  was  bounded  was 
impracticable  for  loaded  wagons  at  most  points,  and  very  incon- 
venient for  any  other  purpose. 

The  learned  court  below  refused  to  find  the  road  a  way  of  neces- 
sity, because  there  were  other  ways  of  access  and  egress  however  in- 
convenient, citing  McDonald  v.  Lindall,  3  Rawle,  492. 

The  court,  however,  found  that  "the   road  was  apparent  on  the 

ground  and  there  was  nothing  on  the  ground  to  indicate  that  it  was  not 

intended  to  be  permanent.       He  therefore  found  that  the  right  to  the 

f       use  of  the  road  passed  by  implication  as  an  easement,  appurtenant  to 

\\j)Ut^  tlie^^rant. 

l**^  The  argument  of  the  appellant  rests  mainly  on  the  view  that  the  road 

having  had  its  origin  in  temporary  convenience  to  the  owner  of  the 
larger  lot  was  never  intended  to  be  permanent,'  and  that  the  inten- 
tion was  an  essential  element  in  the  creation  of  a  servitude.  The 
principle  in  general  may  be  conceded,  and  so  long  as  the  ownership  of 
the  dominant  and  servient  lands  remains  in  the  same  party  the  ap- 
plication of  the  principle  may  be  determined  by  his  actual  personal  in- 
tent. But  on  a  severance  a  question  of  conflicting  rights  arises  and  the 
iiTtent  which  lies  at  the  bqsis  of  the  creation  of  a  servitude  is  no  longer 
//*  the  grantor's  actual  and  perhaps  undisclosed  intent,^  but  the  rnutipl 


.jr^ 


^ 


A.  249,  15  Am.  St.  Rep.  235  (cited  though  in  a  different  connection 


Ch.  4)  CREATION   OF  EASEMENTS  BY   IMPLICATION  529" 

in  Bank  v.  North,  160  Pa.  303,  28  Atl.  694).  "The  intention  to  be 
sought  is  not  the  undisclosed  purpose  of  the  actor,  but  the  intentii:)n 
implied  and  manifested  by  his  act.  It  is  an  intention  which  settles, 
not  merely  his  own  rights,  but  the  rights  of  others  who  have  or  may 
acquire  interests  in  the  property.  They  cannot  know  his  secret  purpose, 
and  their  rights  depend,  not  upon  that,  but  upon  the  inferences  to,  be 
dravyn  from  what  is  external  and  visibly." 

The  facts  as  found  by  the  court  in  the  present  case  were  that  Wal- 
lace was  at  the  time  of  the  sale  "the  owner  of  the  land  over  which  the 
way  is  claimed  and  of  the  land  to  which  it  is  now  claimed  to  be  ap- 
purtenant. Before  the  grant.  Wallace  had  laid  out  and  opened_jn2fln 
the  ground  the  road  in  question,  and  it  was  the  only  road  by  which  it 
was  practicable  to  have  access  to  the  land.  The  road  was  apparent  on 
the  ground,  and  there  was  nothing  upon  the  ground  to  indicate  that 
it  was  not  intended  to  be  permanent."  The  natural  inference  from 
these  facts  would  be  that  the  road  was  intended  to  be  permanent. 
That  inference  the  grantee  was  entitled  to  draw  without  rpp;arrl  tn  tVip 
grantor's  actual  but  undisclosed  intent,  and  it  therefore  became  the  law 
of  the  case. 

Decree  affirmed  at  the  costs  of  appellant.^'  ^/^tJO^KJU^  ^S/^-'O-^^ 

ADAMS  V.  GORDON. 

(Supreme  Court  of  Illinois,  1914.     265  111.  87,  106  N.  E.  517.) 

Appellant  filed  her  bill  in  chancery  in  the  circuit  court  of  Lake  coun- 
ty, Illinois,  against  appellee,  for  an  injunction  to  restrain  him  from  in- 
terfering with  her  in  the  exercise  of  her  rights  which  she  claimed  in 

16  In  Martin  v.  Murphy,  221  111.  632,  '77  N.  E.  1126  (1906),  and  German  Sav- 
ing &  Loan  Co.  V.  Gordon,  54  Or.  147,  102  Pac,  736,  26  L.  II.  A,  (N.  S.)  331 
(1909),  quasi  easements  of  passage  evidenced  by  board  walks  and  in  part  to 
fences,  were  held  to  be  turned  into  re^  easements  bv  implication  upon  sevev- 
ance  of  ownersnlp!  So,  also,  in  Kollo  v.  i\ersoii,  34  Utah, '  116,  W  Pac.  263,  26 
L.  K.  A.  (JN.  S.)  315  (1908),  where  the  quasi  easement  was  evidenced  by  a  cement 
walk.     See  Polden  v.  Bastard,  and  note  thereto,  supra. 

In  Baker  v.  Rice,  56  Ohio  St.  463,  47  N.  E.  653  (lSi37),  the  court  had  to  de- 
termine whether  an  easement  of  a  way  had  been  created  by  implication,  the 
deeds  severing  the  common  ownership  having  been  delivered  simultaneously. 
The  way  was  "plainly  obvious  and  appai'ent."  The  court  held  the  easement 
was  created  by  implication.  ]\Iinshall,  J.,  said:  "But  it  is  claimed,  that  only 
such  easements  as  are  termed  'continuous'  will  pass  by  implication  in  a  grant, 
and  tiiat  sucn  as  are  termed  'discontinuous'  will  not^  This  is  a  distinction  of 
the  civn  law,  and  has  been  incorporated  in  the  law  of  some  of  the  states,  par- 
ticularly Maine  and  Massachusetts.  The  former  are  such  as  operate  without 
the  intervention  of  man,  such  as  drains  and  sewers ;  the  latter  require  the  in- 
tervention of  man  in  their  use,  such  as  ways.  Tl;ie  distinction  is  somewhat 
arbitrary  and  is  not  uniformly  adopted,  slh  vvill  appear  from  the  cases  cited. 
The  bgttgrmlA  and  the  one  now  more  generally  adopted,  is  not  to  conslder"tbe 


Aig.Pbop 


530  DERIVATIVE  TITLES  (Part  2 

the  nature  of  an  easement  in  certain  water  facilities  and  a  way  thereto, 
situated  on  the  lands  of  appellee.  A  demurrer  was  sustained  to  the 
bill,  and  appellant  electing  to  abide  by  her  bill,  a  decree  was  entered 
dismissing  the  bill  for  want  of  equity.  She  prayed  and  perfected  an 
appeal  to  the  Appellate  Court  for  the  Second  District,  which  has  trans- 
ferred the  cause  to  this  court  pursuant  to  the  statute,  for  the  reason 
that  a  freehold  is  involved. 

It  appears  from  the  allegations  of  the  bill  that  prior  to  November 
29,  1911,  appellee  was  the  owner  of  a  tract  of  about  one  hundred  or 
more  acres  of  land  situated  on  what  is  known  as  Deerpath  avenue,  in 
the  vicinity  of  Lake  Forest,  Illinois!  November  29,  1911,  he  entered 
into  a  contract  with  John  F.  Tracy  for  the  sale  of  a  portion  jof  this 
land,  in  which  he  contracted,  among  other  things,  that  the  purchaser 
should  have  the  right  to  the  uig_Qf  the_well  located  on  his  adjacenj 
property,  together  with  the  pump,  gasoline  engine  and  tank  situated 
thereon,  until  such  time  as  public  water  mains  should  be  installed  in 
Deerpath  avenue,  with  the  right  to  use  a  path.-  not  exceeding  eight  feet 
in  width,  from  a  gate  on  the  west  line  of  the  property  leading  in  a_di- 
rect  line  to  the  well,  the  purchaser  to  maintain  the  well,  pump,  engine 
and  tank  at  his  own  expense  and  furnish  water  for  the  use  of  appellee 
without  charge  or  expense  to  him,  and  should  said  Tracy  fail  to  so 
maintain  and  furnish  water,  his  right  to  the  use  of  the  well  and  pump 
might  be  terminated  by  the  vendor  and  all  obligations  under  the  con- 
tract canceled.  On  the  same  day  the  contract  was  made  appellee  con- 
veyed the  land  described  in  the  contract  to  said  Tracy  bv  warranty 
^^jL.A^  deed,  in  which  no  reference  whatever  is  made  to  the  provision  in  the 
-  -y^.  "  contract  in  relation  to  the  use  of  water  facilities  as  above  set  forth. 
^^'^^  >^  At  the  time  the  contract  was  made  between  appellee  and  Tracy  appel- 
V4A'^*^^^  lant  was  a  tenant  on  the  property  under  a  lease  expiring  on  November 
'^^^y^'^^  30,  1911.  January  4.  1912.  Tracy  conveyed  the  land  purchased  by  him 
U^  to  appellant  by  warranty  deed  in  all  respects  the  same  as  the  deedJie 

had  received  from  appellee,  the  deed  making  no  mention  whatever  of 
the  easement  contained  in  the  contract  between  appellee  and  Tracy. 

Appellant  alleges  the  omission  of  this  matter  was  due  to  the  mistake 
of  the  scrivener  in  drafting  the  deed,  but  she  does  not  ask  that  the  deed 
be  reformed.  For  some  years  the  water  facilities  located  on  appellee's 
land  have  been  used  by  him  and  his  tenants,  includino-  apppiia.nt,  tor 
the  purpose  of  supplying  the  premises  now  owned  by  her  with  water 
for  domestic  purposes  and  to  supply  water  for  the  stables,  lawns  and 
gardens  thereon,  said  water  facilities  being  absolutely  necessary  and 
essential  to  the  full  enjoyment  of  her  premises.  Appellant  charges  that 
one  of  the  important  factors  inducing  her  to  purchase  the  premises  was 
the  fact  that  she  should  have  the  right  to  the  free  and  unobstructed 
use  of  the  water  facilities  mentioned  in  the  contract  between  said  Tracy 
and  appellee.  The  pump,  pump  house,  tank  and  engine  are  located  on 
appellee's  premises  about  one  hundred  feet  from  the  west  line,  of  ap- 
pellant's property,  and  the  water  is  conveyed  from  there  to  her  premises 


x^. 


J- 


Ch.  4)  CREATION   OP  EASEMENTS  BY   IMPLICATION  531 

and  buildings  by  means  of  an  underground  pipe  leading  from  the  tank 
on  appellee's  property  to  die  house,  stable,  lawn  and  garden  on  appel- 
lant's premises.  The  pipe  is  visible  on  appellee's  land  between  the  point 
where  it  leaves  the  tank  and  enters  the  ground,  and  also  visible  on 
appellant's  premises  where  it  emerges  from  the  ground  and  connects 
with  the  faucets,  plugs,  Hush-boxes  and  hydrants  on  her  land  A  view 
of  the  premises  at  the  time  of- the  purchase  by  Tracy  and  of  her  pur- 
chase from  Tracy  would  have  disclosed  that  the  faucets,  plu^s.  flush- 
boxes  and  hydrant  on  her  property  were  connected  with  the  tank  on 
appellee's  land,  and  that  the  pump,  pump  house,  engine  and  tank  situ- 
ated thereon  were  used  as  the  means  of  supplying  these  premises  with 
water,  and  that  the  water  facilities  thus  provided  were  highly  beneficial 
to  her  property.  No  public  water  mains  have  been  installed  or  con- 
structed in  Deerpath  avenue  leading  to  this  property,  and  it  is  indis- 
pensable to  its  use  and  enjoyment  by  appellant  that  she  have  the  ad- 
vantage of  water  facilities  provided  for  it,  situated  on  appellee's  land. 

After  appellant  became  a  purchaser  appellee  permitted  her  to  con- 
tinue to  use  the  water  facilities  for  some  time  without  protest  and 
from  time  to  time  to  make  the  necessary  repairs  thereon.  Shortly 
before  filing  the  bill  he  demanded  of  her  the  payment  of  $50  which  he 
claimed  was  due  on  a  former  tenancy  by  her,  and  when  she  refused  to 
pay,  on  the  ground  that  it  was  without  any  foundation,  appellee  refused 
to  allow  her  servants  to  make  repairs,  on  the  engine  used  for  pumpmg 
water  into  the  tank,  locked  the  door  to  the  pump  house,  shut  the  water 
ofif,  forbade  appellant  or  her  servants  to  use  the  well  or  the  pathway 
thereto  and  blockaded  the  same  by  installing  posts  and  wires  across 
the  pathway,  and  threatened  violence  to  appellant  and  her  servants  if 
they  attempted  to  obtain  water  from  the  well  or  to  use  the  pathway 
leading  thereto.  The  bill  prayed  for  an  injunction  enjoining  the  ap- 
pellee from  interfering  with  appellant's  rights  in  the  premises  and  in 
the  use  of  the  water,  pump  house,  engine  and  tank  and  other  water  fa- 
cilities as  above  set  forth,  and  for  general  relief.  A  general  demiirrer 
was  sustained  to  the  bill,  setting  forth  the  above  facts.  Appellant  elect- 
ed to  abide  by  her  bill  and  a  decree  was  entered  dismissing  the  bill  for 
want  of  equity.     This  appeal  followed.     , 

The  errors  assigned  are,  (1)  that  the  court  erred  in  sustaining  the 
demurrer  to  the  bill ;  and  (2)  that  the  court  erred  in  dismissing  appel- 
lant's bill  for  want  of  equity. 

Craig,  J.^''  Appellant  by  her  bill  asserts  and  seeks  to  establish  and 
maintain  a  right  in  the  nature  of  a  perpetual  easement  in  the  adjoining 
lands  of  the  appellee  in  the  use  and  maintenance  of  certain  water  fa- 
cijities  located  thereon,  by  means  of  which  her  house,  barn,  garden 
and  premises  are  supplied  with  water.  This  right,  if  it  exists,  is  an 
easement  appurtenant  to  an  estate  in  fee,  and  a  bill  filed  for  the  pur- 
pose of  establishing  such  an  easement  involves  a  freehold,  and  the  case 

17  A  portion  of  the  opinion  is  omitted. 


(^ 


532  DERIVATIVE  TITLES  (Part  2 

was  therefore  properly  transferred  to  this  court  Tinker  v.  Forbes, 
136  111.  221,  26  N.  E.  503 ;  Foote  v.  Marggraf,  233  111.  48,  84  N.  E.  42; 
Foote  v.  Yarlott,  238  111.  54,  87  N.  E.  62;  Espenscheid  v.  Bauer,  235 
111.  172,  85  N.  E.  230. 

Appellant  insists  that  she  is  entitled  to  the  benefits  of  the  cojitiact 
of  November  29.  1911,  between  Tracy  and  appellee,  and  also  that  the 
water  facilities  on  appellee's  land  constitute  an  open  and  visible  ease- 
ment appurtenant  to  her  premises,  which  passed  by  the  deed  of  con- 
veyance of  the  land  from  appellee  to  Tracy  and  from  Tracy  to  her. 
Appellee  insists  that  no  rights  passed  to  appellant  under  the  contract 
withTracy,  tor  the  reasons  it  was  never  executed  by  Tracy,  that  it 
was  a  personal  contract,  and  that  it  became  merged  into  and  extin- 
guished by  the_deed  subsequently  made  conveying  the  land  to  Tracy. 
The  appellee  further  insists  that  in  order  for  an  easement  to  pass  as 
appurtenant  to  land,  it  must  be  open,  visible  and  continuous  and  such 
as  does  not  require  the  interference  by  man.  We  do  not  deem  it  nec- 
essary to  pass  upon  each  one  of  these  contentions  separately,  but  the 
substance  of  each  and  all  of  these  contentions  will  be  given  full  con- 
sideration. 

The  object  in  construing  and  interpreting  an  instrument  is  to-ascer- 
tain  and  make  it  speak  the  true  intention  and  meaning  of  the  parties 
at  the  time  it  was  made,  and  where  any  doubt  exists  as  to  its  sense  and 
meaning,  resort  may  "be  had  to  the  circumstances  surrounding  i^s_ex- 
ecution,  for  the  purpose  of  ascertaining  the  subject  matter  and  the 
standpoint  of  the  parties  m  relation  thereto.  Without  this  knowledge 
it  would  be  impossible  to  fully  understand  the  meaning  of  an  instru- 
ment or  the  effect  to  be  given  to  the  words  of  which  it  is  composed. 
Goodwillie  Co.  v.  Commonwealth  Electric  Co.,  241  111.  42,  89  N.  E.  272. 
This  knowledge  is  almost  as  indispensable  as  that  of  the  language  in 
which  the  instrument  is  written,  and  a  reference  to  the  actual  condition 
of  things  at  the  time  as  they  appeared  to  the  parties  themselves  will 
often  afford  the  court  great  help  in  construing  such  language  and  ar- 
riving at  the  true  intent  and  meaning  of  the  agreement  they  have  made. 
By  referring  to  the  situation  of  the  parties  and  a  condition  of  the  prem- 
ises at  the  time  appellant  became  a  purchaser  of  the  same,  we  find  she 
had  been  a  tenant  thereof  for  some  years,  the  length  of  time  not  being 
stated  in  the  bill,  and  during  all  of  that  time  had  used  and  enjoyed  all 
of  the  privileges  which  she  now  claims  as  an  easement  appurtenant  to 
her  premises.  In  purchasing;-  the  property  she  had  a  right  to  assume 
and  expect  she  was  buying  itin  its  then  condition  and  would  havT^ 
ri^ht  to  use  and  enjoy  alFof  those  necessary  conveniences  which  had 
been  placed  thereon  by  the  owner  and  were  used  in  connection  therg- 
witb^ and  were  recognized  by  the  owner  as  beiiify  ^ppnrt-pn;^nt  to  the 
premises  and  passing  with  a  lease  under  which  she  had  enjoyed  the 
same  as  a  tenant. 

The  rule  is,  where  _the  owner  of  lands  divides  his  property  into  two 
parts  and  disposes  of  one  part,  he  by  implication  includes  in  his  grant 


Ch.  4)  CREATION  OP  BASEMENTS  BY   IMPLICATION  533 

all  siirVi  (^a 'cements  in  the  remaining  part  as  were  necessary  for  the 
reasonable  enioyment  pf  the  part  which  he  grants  in  the  form  in  which 
it  was  at  tlie  time  he  transferred  the  property,  the  general  rule  of  law 
being,  that  when  a  party  grants  a  thing,  he  by  implication  grants  what- 
ever is  incident  tojt  and  necessary  to  its  benp.fidal  enioyment..  Newell 
y.  Sass,  1421004^31  N.  E.  176;  Keegan  y.  Kinnare,  123  111.  280,  14 
N.  E.  14 ;  Foote  y.  Yarlott,  supra ;  Feitler  y.  Dobbins,  263  111.  78,  104 
N.  E.  108S;  Martin  y.  Murphy,  221  111.  632,  11  N.  E.  1126;  Hankins 
V.  Hendricks,  247  111.  517,  93  N.  E.  428;  Powers  y.  Heffernan,  233 
111.  597,  84  N.  E.  661,  16  L.  R.  A.  (N.  S.)  523,  122  Am.  St.  Rep.  199. 
And  it  is  not  necessary  that  the  easement  claimed  by  the  grantee  l)e 
absolutely  necessary  to  the  use  and  enjoyment  of  the  property:  "it  is 
sufficient  if  it  is  highly^  convpnipnt  and  beneficial  therefor."  (Newell 
y.  Sass,  supra ;  Powers  y.  Heffernan,  supra!)  Where  an  owner  sells  a 
portion  of  his  land  he  is  presumed  to  intend  that  the  purchaser  shall  take 
it  in  its  then  condition.  (14  Cyc.  1166.)  This  intention  is  to  be  sought, 
not  in  the  undisclosed  purpose  of  the  vendor,  but  in  what  is  manifest 
and  implied  from  his  acts.  Liquid  Carbolic  Co.  y.  Wallace,  219  Pa. 
457,  68  Atl.  1021,  26  L.  R.  A.  (N.  S.)  327;  Hopewell  Mills  y.  Savings 
Bank,  150  Mass.  519,  23  N.  E.  327,  6  L.  R.  A.  249,  15  Am.  St.  Rep. 
235.  In  Feitler  y.  Dobbins,  supra,  the  rule  is  stated  as  follows :  "The 
law  applicable  to  the  situation  here  is,  that  where  the  owner  of  entire 
premises  arranges  for  ways,  light,  etc.,  for  the  benefit  of  the  different 
parts  or  portions  of  the  premises,  and  afterwards  the  premises  are 
severed  and  the  title  vested  in  separate  owners,  each  grant  will  carry 
with  it,  without  being  specifically  mentioned,  the  rights  and  burdens  and 
advantages  imposed  by  the  owner  prior  to  such  severance.  The  doc- 
trine is  founded  upon  the  principle  that  the  conveyance  of  a  thing  im- 
ports a  grant  of  it  as  it  actually  exists  at  the  time  the  conveyance  is 
made,  unless  a  contrary  mtentiojT^js  m^nifestpd  tn  fhe  gra,pl-  This  doc- 
trine has  often  been  applied  by  this  court.  Morrison  v.  King,  62  111. 
30;  Clarke  v.  Gaffeney,  116  111.  362  [6  N.  E.  689]  ;  Newell  v.  Sass,  142 
111.  104  [31  N.  E.  176]  ;  Plankins  v.  Hendricks,  247  111.  517  [93  N.  E. 
428] ."  The  following  are  a  few  of  the  cases  which  will  illustrate  how 
that  doctrine  has  been  appHed  by  the  courts  in  analogous  cases : 

In  Larsen  v.  Peterson,  53  N.  J.  Eq.  88,  30  Atl.  1094,  it  was  held 
that  a  water  pipe  leading  from  a  driven  well  in  a  yard  to  a  sink  in  the 
kitchen  of  a  dwelling  house,  there  ending  in  a  pump  by  which  water 
could  be  habitually  drawn  from  the  well  to  the  kitchen  for  domestic 
purposes,  would  pass  by  a  conveyance  of  the  dwelHng  house,  alone,  by 
the  owner  of  both  house  and  yard,  although  the  well  and  water  pipe 
were  both  hidden  from  view,  and  that  the  same  result  would  follow 
a  simultaneous  conveyance  of  the  house  to  one  person  and  the  yard 
and  well  to  another,  if  the  latter  took  with  notice  of  the  connection 
between  the  well  and  pump.  In  this  connection  see,  also,  14  Cyc.  1183, 
where  the  rule  is  stated  to  be  as  follows :  "If  the  owner  of  land  devises 
a  system  of  pipes  or  conduits  through  which  water  is  conveyed  from  a 


<^-^ 


534  DERIVATIVE  TITLES  (Part  2 

sprin^.on  one  portion  of  his  premises  to  another  portion  fnr  the  benefit 
of  the  latter  and  then  alienates  the  portion  to  which  the  water  is  thus 
conveyed,  the  right  to  receive  water  through  such  pipes  or  conduits 
over  the  land  conveyed  will  pass  to  the  grantee  by  ?^n^'"aJ  wnrrk" 

In  Ingals  v.  Plamondon,  Th  111.  118,  a  furnace  flue  projected  eight 
inches  through  a  party  wall.  The  owner  of  the  two  lots  divided  by  the 
wall  sold  one  of  them  and  afterwards  sold  the  other.  A  question  arose 
between  the  first  and  the  second  grantees  as  to  the  right  to  maintain 
the  flue.  The  flue  was  shown  to  be  necessary  to  the  maintenance  of 
the  furnace  and  its  existence  apparent  to  the  second  vendee  when  the 
premises  were  purchased,  and  the  easement  was  upheld  as  appurtenant 
to  the  premises. 

In  Powers  v.  Heffernan,  supra,  it  was  held  that  where  the  owner  of 
a  building,  upon  erecting  a  new  building  on  an  adjoining  rot,  uses  the 
stairway  and  hall  of  the  old  building  for  many' years  as  the  only  means 
of  access  to  the  second  floor  of  the  new  building,  an  easement  attaches 
in  favor  of  the  new  building  upon  a  sale  of  the  old  building,  although 
the  only  reservation  in  the  deed  is  the  right  to  one-half  the  party  wall 
between  the  two  buildings.  This  holding  is  based  on  the  principle  that 
^where  the  owner  o_f_a  building,  while  he  was  seized  of  the  entire  tide, 
made  certain  arrangements  with  reference  to  access,  heat,  light  an d 
ajr  which  are  high  lybeneficial  and  convenient  to  the  use  and  enjoy- 
ment of  the  property  and  enhance  its  value,  sells  a  portion  of  the  build- 
ing he  sells  it  in  its  th en  condition,  and  each  portion  of  the  severed 
premises  is  subject  to  the  burdens  or  advantages  thereby  imposed  or 
conferred  upon  the  other-by  the  owner. 

In  Foote  v.  Yarlott,  supra,  we  held  that  where  the  owner  of  a  flat- 
building  executed  two  trust  deeds  for  the  north  and  south  halves  of  the 
building,  respectively,  and  afterward  installed  a  heating  plant  so  as  to 
heat  the  whole  building,  the  heating  plant  being  located  on  the  north 
half,  an  easement  was  created  in  favor  of  the  south  half  in  the  benefi- 
cial use  and  enjoyment  of  that  part  of  the  heating  plant  located  in  the 
north  half,  which  right  could  be  asserted  by  anyone  who  might  become 
the  owner  of  the  south  half  under  the  trust  deed.  It  was  there  said : 
"After  the  trust  deeds  were  executed,  and  before  the  extension  of  the 
time  of  payment,  the  owner  of  the  property  put  in  the  steam  heating 
plant,  with  its  pipes  and  radiators,  to  heat  the  entire'  building.  While 
it  was  designed  for  the  benefit  of  every  part  of  the  building,  that  por- 
tion where  the  steam  heat  was  generated  was  on  the  north  half.  If 
the  plant  had  been  in  the  building  at  the  time  of  the  making  of  the  trust 
deeds  an  easement  for  the  enjoyment  of  the  heating  plant  by  anyone 
who  should  become  owner  of  the  south  twenty  feet  upon  foreclosure 
would  have  passed  although  not  expressly  stated,  on  the  principle  that 
when  a  party  grants  a  thing  he  grants  everything  pertaining  to  it  nec- 
essary to  its  enjoyment.  The  owner  could  not  create  any  charge  or 
easement  on  the  north  half,  after  the  execution  of  the  trust  deeds,  to 
the  detrmient  of  the  owner  of  that  half,  but  the  natural  conclusion 


Ch.  4)  CREATION   OF   EASEMENTS  BY   IMPLICATION  535 

would  be  that  the  installing  of  the  heating  plant  subject  to  the  right  of 
the  owner  of  the  south  half  to  the  beneficial  use  of  the  same  plant  con- 
stituted an  addition  to  the  security  as  to  the  north  half,  and  so  far  as 
appears  that  is  true.  The  owner  installed  the  heating  plant,  which  in- 
creased the  value  of  both  parcels  and  which  was  necessary  for  the 
convenient  and  comfortable  enjoyment  of  both,  in  such  a  way  that  the 
portion  of  the  plant  designed  to  generate  the  steam  heat  was  on  the 
north  half,  and  the  advantages  and  burdens  of  the  arrangement  attached 
to  the  property.  Even  more  liberal  principles  ought  to  be  applied  in 
such  a  case  than  in  case  of  the  implied  reservation  sustained  in  Powers 
V.  Hefifeman,  22>^  111.  597,  84  N.  E.  661,  16  L.  R.  A.  (N.  S.)  bZo,  122 
Am.  St.  Rep.  199.  In  our  opinion  the  trust  deed  incjudes  the  easement 
of  the  beneficial  use  of  that  part  of  the  heating  plant  located  on  the 
north  twenty  feet,  and  the  owner  of  said  north  twenty  feet  must  per- 
mit such  beneficial  use  by  anyone  who  may  become  the  owner  of  the 
south  twenty  feet  under  the  trust  deed." 

Nq^ distinction,  in  p^'nriplg^  exists  or  can  be  made  in  the  application 
of  the  law  of  easements,  between  easement  of  heat,  light  qnd  air  of  of 
ingress  and  egress,  and  the  right  to  the  use  and  enjoyment  of  tlie  water 
rights  and  facilities  shown  in  the  case  at  bar.  Nor  can  it  well  be  said 
that  an  easement  in  the  beneficial  use  and  enjoyment  of  the  heating 
plant  in  Foote  v.  Yarlott,  supra,  was  more  open,  visible  and  continuous, 
and  susceptible  of  being  operated,  used  and  enjoyed  without  the  inter- 
ference of  man,  than  the  water  facilities,  pump  and  engine  are  in  the 
case  at  bar.  The  aid  of  man  to  put  them  in  operation  and  keep  them  in 
repair  is  equally  necessary  and  essential  in  both  cases.  The  above  cases 
so  conclusively  answer  appellee's  contentions  upon  this  question  as  to 
render  a  further  discussion  of  them  at  this  time  wholly  unneces- 
sary.    *     *     * 

For  the  reasons  given,  the  decree  will  be  reversed  and  the  cause  re- 
manded to  the  circuit  court  of  Lake  county,  with  directions  to  overrule 
the  demurrer,  and  for  further  proceedings  in  accordance  with  the 
views  herein  expressed.    Reversed  and  remanded,  with  directions. 


BUTTERWORTH  v.  CRAWFORD. 

(Court  of  Appeals  of  New  York,  1S71.     46  N.  Y.  349,  7  Am.  Rep.  .352.) 

Appeal  from  judgment  of  the  General  Term  of  the  Court  of  Com- 
mon Pleas,  for  the  city  and  county  of  New  York,  affirming  judgment 
entered  upon  the  report  of  a  referee. 

The  facts  of  this  case,  as  found  by  the  referee,  are  as  follows :  Hen- 
ry Vulkening  in  1864  owned  two  houses  adjoining  each  other  on  the 
north  side  of  Forty-Sixth  street,  in  the  city  of  New  York,  known  as 
Nos.  83  and  85  West  Forty-Sixth  street.     While  such  owner,  he  dug 


536 


DERIVATIVE  TITLES 


(Part  2 


.H'' 


^^F" 


<i^- 


and  formed  a  vault,  extending  partly  into  the  yard  of  each  house, 
and  constructed^  drain  from  such_yault,  running  through  the  Jot  of 
house  No.  85,  to  the  sewer  in  Forty-Sixth  street.  He  then  built  a 
division  fence  between  the  yards  of  the  two  houses,  extending  from 
the  rear  of  the  houses  to  the  rear  of  the  lots,  which  fence  was  upon 
the  division  line,  and  crossed  the  vault  in  the  center.  He  constructed 
an  outhouse  on  either  side  of  such  division  fence,  over  the  vault  for 
said  house  respectively,  the  roof  of  such  outhouse  extending  a  few 
inches  above  the  fence. 

After  constructing  such  vault  and  outhouses,  on  the  11th  dav  of 
December.  1865.  he  conveyed  the  house  and  lot  No.  85  West  Forty- 
Sixth  street,  to  the  defendant  in  this  action,  by  full  covenant  jwar- 
rantee  deed. 

The  defendant,  immediately  on  the  receipt  of  such  deed,  took  pos- 
session of  the  said  premises.  Thereafter,  on  the  26th  day  of  Janu- 
ary, 1866,  Vulkening  conveyed  said  house,  known  as  No.  83  West 
Forty-Sixth  street  to  the  plaintiff. 

In  the  summer  of  1866,  tVie  defendant  built  a  privy  on  his  premises 
No.  85  West  Forty-Sixth  street,  about  twelve  feet  further  towards 
the  rear  of  his  lot,  and  extended  the  drain  to  the  vault  of  such  privy, 
and  then  cut  off  the  connection  between  that  portion  of  the  vault  on 
the  plaintiff's  lot  and  the  said  drain. 

The  defendant  upon  the  trial  offered  to  show,  that  there  was  noth- 
ing in  the  appearance  of  the  premises  at  the  time  he  bought,  to  give 
notice  that  the  privy  was  drained  through  his  lot.  This  was  refused 
by  the  referee,""and  the  defendant's  counsel  excepted. 

The  defendant's  counsel  also  offered  to  prove,  that  the  defendant 
had  no  notice  when  he  bought,  that  the  privy  was  drained  through  liis 
lot.  This  was  rgfused  by  the  referee,  and  the  defendant's  counsel  duly 
excepted. 

The  referee,  as  conclusions  of  law,  decided :  That  the  defendant 
had  no  right  to  cut  off  or  obstruct  the  communication,  from  that  part 
of  the  vault  on  the  plaintiff's  lot,  through  the  drain  on  the  defendant's 
premises  to  the  sewer  in  the  street.  ~     ~ 

That  the  plaintiff  was  entitled  to  judgment,  restraining  the  defend- 
antfriiai--eOTTtifrumg  such  obstruction,  and  requiring  the  defendant  to 
open  such  drain,  and  to  restore  the  same  to  the  condition  it  was  in  at 
the  time  of  the  said  conveyance  to  the  plaintiff. 

Rapallo,  J.  We  have  come  to  the  conclusion  that  the  drain  in 
controversy  didjciot  constitute  an  apparent  servitude  or  easement,  and 
that  consequently  the  case  does  not  present  the  question  so  fully  ar- 
gued before  us,  whether  when  a  dominant  and  servient  tenement  are 
owned  by  the  same  person,  and  he  makes  a  conveyance  of  the  servient 
tenement  first,  with  covenants  of  warranty,  and  against  incumbrances, 
and  without  the  express  reservation  of  any  easement,  such  conveyance 
will  preclude  him  or  his  assigns  from  afterward  asserting  in  favor  of 


Ch,  4)  CREATION   OF  EASEMENTS  BY   IMPLICATION  537 

the  dominant  tenement,  which  he  retains,  the  benefit  of  the  easement 
in  the  premises  so  conveyed.  We  therefore  refrain  from  expressing 
an  opinion  upon  that  point. 

All  the  authorities  cited  on  the  argument,  by  the  learned  counsel 
for  the  respective  parties,  concur  in  holding  that  the  rule  of  law  which 
creates  an  easement  on  the  severance  of  two  tenements  or  heritages, 
by  the  sale  of  one  of  them,  is  confined  to  cases  where  an  apparent 
sig^n  of  servitude  exists  on  tlie  part  of  one  of  them  in  favor  of  the 
other ;  or  as  expressed  in  some  of  the  authorities,  where  the  mark$ 
of  the  burden  are  open  and  visible. 

Unless  therefore  the  servitude  be  open  and  visible,  or  at  least,  un- 
lesj;  there  ^<^  ^ome  apparent  mark  or  sign,  \vbirh  would  inrlirate  its 
existence  to  one  reasonably  familiar  with  the  subject,  on  an  inspection 
of  the  premises,  the  rule  has  no  application. 

There  was  nothing  in  the  situation  or  appearance  of  the  premises 
to  indicate  that  there  was  any  drain  from  the  privies  in  question. 
Drains  are  not ^^3.  necessary  accompaniment  of  privies  constructed  as 
these  were.  In  cities,  municipal  regulations  provide  for  their  being 
cleansed  by  licensed  public  scavengers,  and  this  practice  is  frequently 
brought  to  the  notice  of  the  inhabitants  i'n  a  very  obvious  manner.  No 
evidence  was  introduced  to  show  that  drains  from  them  were  usual 
in  the  locality  in  question.  But  had  such  evidence  been  given,  it  does 
not  appear  that  there  was  any  thing  to  indicate  that  the  privy  of 
the  neighboring  house  was  drained  through  the  lot  sold  to  the  defend- 
ant. 

In  the  case  of  Pyer  v.  Carter,  1  Hurl.  &  Nor.  916,  which  was  much 
relied  upon  on  the  argument,  and  in  the  opinion  of  the  learned  court 
below,  the  dominant  and  servient  tenement  had  originally  been  one 
house.  This  house  had  been  divided  into  two  parts.  The  drainage 
was  of  the  water  which  fell  upon  the  roof,  and  it  may  well  be,  that 
the  situation  and  arrangement  of  the  building  were  such  as  to  indicate 
that  some  drain  necessarily  existed  as  an  appurtenant  to  the  house, 
and  that  upon  the  division  of  the  house  into  two  parts,  that  drain  be- 
came common,  and  afforded  drainage  for  both  of  the  parts  through 
one  of  them. 

Such  seems  to  have  been  the  fact;   for  the  court  says,  in. rendering  \ 

judgment,  that  "the  defendant  must  have  known,  or  ought  to  have 
known,  that  some  drainage  existed,  and  if  he  had  inquired,  would  have 
known  of  this  drain."  ^~ 

That  decision  recognizes  the  necessity  of  establishing  that  the  servi-(  j;L.^>^/  ^«  /^   ^ 
tude  is  apparent,  or  that  there  is  an  apparent  mark  or  sign  of  it,  and    Q  ^-'«-t^ 

seems  to  be  based  on  the  ^ct  that  the  situation  and  construction  of 
the  premises  afforded  such  a  sign. 

In  Washburn  on  Easements  (2d  ed.),  p.  68,  the  learned  author,  after 
reviewing  the  cases  on  this  subject,  states  that  he  considers  the  doc- 
-trine  of  Pyer  v.  Carter  confined  to  cases  where  a  drain  is  necessary 


538  DERIVATIVE  TITLES  (Part  2 

to  both  houses,  and  the  owner  makes  a  common  drain  for  both;   and 

'  . . ; — • i        '        «^ 

this  arrangement  is  ajicaxgilt  and  nhviniT,  to  an  observer. 

If  Pyer  v.  Carter  goes  farther  than  that,  or,  at  all  events,  if  it  ap- 
plies to  cases  where  there  is  no  apparent  mark  or  sign  of  the  drain,  it 
is  not  in  accordance  with  the  current  of  the  authorities. 

The  bearing  of  that  case  upon  the  question,  whether  the  alleged  ease- 
ment was  one  of  necessity,  upon  the  point  as  to  the  order  in  which  the 
tenements  were  sold,  and  upon  the  other  questions,  which  were  argued 
before  us  with  so  much  learning  and  ability,  need  not  now  be  consid- 
ered, as  we  do  not  propose  at  this  time  to  decide  those  questions ;  and 
for  the  same  reason  we  forbear  reviewing  the  numerous  other  au- 
thorities to  which  we  have  been  referred,  ba_sing  our  decision  upon  the 
single  ground  that  the  servitude  claimed  was  not  apparent. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  event.     All  concur. 

Judgment  accordingly. 


(^n.c^,J 


WEEKS  V.  NEW  YORK,  W.  &  B.  RY.  CO. 

(Court  of  Appeals  of  New  York,  1912.     207  N.  Y.  190,  100  N.  E.  719.) 

Appeal  from  a  iud;:;^ment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  second  judicial  department,  entered  June  13,  1911,  af- 
firming a  judgment  in  favor  of  defendant  entered  upon  a  dismissal  of 
the  complaint  by  the  court  on  trial  at  Special  Term. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are  stated 
in  the  opinion. 

CiiASK,  J.  On  July  30,  1906,  the  plaintiff  purchased  two  lots  of 
land  in  New  Rochelle  which  were  in  part  described  in  the  deed  as 
follows :  "known  and  distinguished  as  lots  numbers  fifty-seven  and 
fifty-eight  (57  and  58)  on  a  certain  map  entitled  'Map  of  Property 
Belonging  to  W.  Chalmers,  J.  C.  Wilson  and  Others,  New  Rochelle, 
N.  Y.,'  dated  December,  1904,  made  by  Horace  Crosby,  C.  E.  filed  in 
the  Westchester  County  Register's  office,  which  lots  arg  iI''Q'"P  pn^'tim- 
larly  bounded  and  described  as  follows :  Beginning  at  a  point  on  the 
westerly  side  of  Cedar  street  as  shown  on  said  map  (detailed  descrip- 
tion omitted),  to  the  said  westerly  side  of  Cedar  street  and  running 
thence  southeasterly  along  the  said  westerly  side  of  Cedar  street, 
eighty-one  and  one  one-hundredths  (81.01)  feet  to  the  point  or  place 
of  beginning." 

The  defendants  subsequently  became  the  owners  of  all  the  other  lots 
frontinp^  on  the  so-called  street,  north  of  Orchard  street  m  said  city, 
ancl  they  commenced  the  erection  of  an  embankment  across  said  so- 
called  street,  north  of  Orchard  street,  so  as  to  obstruct  the  plaintiff's 
ri^ht  of  access  to  her  said  lots. 


Ch.  4)  CREATION   OF  BASEMENTS  BY  IMPLICATION  539 

This  action  was  commenced  and  the  complaint  alleges  in  detail  the 
plaintiff's  ownership  in  fee  of  said  lots,  and  the  acts  of  the  defendants, 
including  an  allegation,  "That  said  railway  company,  its  agents  or 
employees,  have  caused  to'  be  erected  across  said  Cedar  street,  same 
being  a  public  street,  and  are  now  erecting  said  embankment  so  as  to 
completely  obstruct  the  right  of  access  of  this  plaintiff  through  said 
"Cedar  street  to  her  said  property."  The  complaint  demands  judgment: 
"(1)  That  the  defendants  be  enjoined  and  restrained  from  in  any  way 
interfering  with  the  free  use  of  said  Cedar  street  by  tliis  plaintiff.  (2) 
That  defendants  be  compelled  to  remove  from  said  Cedar  street  all 
obstructions  now  erected  thereon  interfering  with  the  free  access  of 
plaintiff  to  her  premises  through  said  street." 

The  plaintiff's  failure  to  recover  a  judgment  protecting  her  right 
of  access  to  said  lots  has  apparently  resulted  from  the  extraordinary 
attitude  of  her  counsel  in  insisting  that  the  so-called  street  is  a  pub- 
lic street  or  highway  when  he  was  wholly  unable  to  sustain  such  posi- 
tion.    The  court  did,  however,  find  the  following  facts : 

"Second.  That  in  or  about  the  month  of  December,  1904,  W. 
Chalmers,  Frederick  A.  Steele  and  J.  C.  Wilson,  at  that  time  the  own- 
ers of  the  so-called  Maple  Park  tract  in  New  Rochelle,  duly  filed  a 
map  of  said  tract,  surveyed  by  Horace  Crosby,  in  tlie  office  of  the 
Register  of  Westchester  county. 

"Third.  That  the  description  of  the  premises  in  the  deed  of  Chalm- 
ers et  al.  to  plaintiff,  bounds  same  as  abutting  on  Cedar  street  as  in- 
dicated on  the  map  filed  by  said  Chalmers  et  al.  in  December,  1904, 
the  abutting  lot  being  described  in  said  deed  and  on  said  rr"p  as  lot 
number  58." 

"Sixth.  That  the  defendant  the  City  and  County  Contract  Company 
is  owner  in  fee  of  all  the  land  or  right  of  way  over  which  the  line  of 
the  defendant  New  York.  Westchester  &  Boston  Railway  Company 
hgs  been  constructed,  or  is  about  to  be  constructed  in  the,  said  Maple 
Park  Tract,  and  more  particularly  is  owner  in  fee  of  the  lots  11,  12, 
13  and  14,  and  that  part  of  Cedar  street  over  which  the  line  of  the 
defendant,  New  York,  Westchester  &  Boston  Railway  Company  passes, 
and  also  of  all  of  Cedar  street  north  of  Orchard  street,  except  that 
portion  opposite  lot  58  to  the  center  of  said  Cedar  street. 

"Seventh.  That  defendants  have  caused  to  be  placed  on  Cedar  street 
aforesaid  near  Orchard  street,  obstructions  consisting  of  stone,  which 
completely  block  access  over  Cedar  street  northerly  from  said  Orchard 
street,  and  placed  said  stone  there  before  the  commencement  of  this 
action." 

"Tenth.  That  plaintiff  by  the  obstruction  of  stone  aforesaid,  is  de- 
prived of  all  access  to  her  premises,  lots  57  and  58.  over  said  Ce^r 
street  from  Orchard  street,  and  has  been  so  deprived  before  the  com- 
mencement of  this  action." 

"Twelfth.  That  plaintiff  after  delivery  of  deed  to  her  of  lots  57  and 


540  DERIVATIVE  TITLES  (Part  2 

58,  used  Cedar  street  more  or  less  each  year  since,  for  going  to  and 
coming  from  said  premises,  to  and  from  Orchard  street. 

"Thirteenth.  That  plaintiff  has  not  at  anv  time  consented  to  the 
closing  of  Cedar  street  by  defendants  or  their  agents. 

"Fourteenth.  That  at  the  time  of  delivery  of  deed,  Exhibit  1,  to 
plaintiff,  Chalmers  et  al.  the  owners  of  the  entire  tract,  still  owned  all 
the  lots  abutting  on  Cedar  street  north  of  Orchard  street,  and  did  not 
convey  the  balance  of  said  lots  until  after  plaintiff  owned  and  had  pos- 
session of  lot  58  under  the  said  deed  and  said  deed  was  filed  of  rec- 
ord." 

The  plaintiff  requested  the  court  to  find,  as  conclusions  of  law :  "14. 
That  the  proof  shows  that  plaintiff  is  entitled  to  some  relief  and  that 
the  court  should  therefore  have  given  judgment  for  plaintiff."  "17. 
That  plaintiff  is  entitled  to  a  judgment  directing  defendants  to  xt- 
move  all  obstructions  from  Cedar  street  and  enjoining  defendants 
from  further  obstructing  the  said  street  and  interfering  with  plaintiff's 
free  access  over  Cedar  street  to  her  property  described  in  the  com- 
plaint." The  court  refused  to  find  the  conclusions  of  law  requested 
by  the  plaintiff,  but  did  find  that  the  complaint  states  facts  sufficient 
to  constitute  a  cause  of  action,  and  that  tlie  plaintiff  has  no  adequate 
remedy  at  law.  It  also  found  that  that  part  of  Cedar  street  north  of 
Orchard  street  is  not  and  never  has  been  a  public  street,  and  that  the 
defendants  are  entitled  to  judgment  dismissing  the  plaintiff's  complajnt 
upon  the  merits,  and  judgment  was  entered  accordingly. 

The  facts  found  show  that  the  plaintiff  had  a  private  easement  ovgr 
the  so-called  Cedar  street.  Her  rights  as  the  owner  of  such  "easement, 
a§  between  herself  and  tfie  defendants,  are  similar  to  the  rights  of  an 
abutter  upon  a  public  street  or  highway. 

In  Lord  V.  Atkins,  138  N.  Y.  184,  191,  33  N.  E.  1035,  1037,  the 
court  say :  "It  is  well  settled  that  when  the  owner  of  land  lavs  itout 
into,  distinct  lots,  with  intersecting  streets  or_avf.njaes,_and  sells  the 
lots  with  reference  to  such  streets,  his  grantees  or  successors  cannot 
afterwards  be  deprived  of  the  benefit  of  having  such  streets  kept 
open.  When,  in  such  a  case,  a  lot  is  sold  bounded  bv  a  street,  the  pur- 
chaser and  his  grantees  have  an  easement  in  the  street  for  the_jny- 
poses  of  access,  which  is  a  property  right."  See,  also,  Reis  v.  City  of 
New  York,  188  N.  Y.  58,  80  N.  E.  573 ;  'india  Wharf  Brewing  Co.  v. 
B.  W.  &  W.  Co.,  173  N.  Y.  167,  65  N.  E.  985;  Story  v.  N.  Y.  Elev. 
R.  R.  Co.,  90  N.  Y.  122,  165,  43  Am.  Rep.  146;  Bissell  v.  N.  Y.  C. 
R.  R.  Co.,  23  N.  Y.  61;  Gerard  on  Title  to  Real  Estate,  551,  821; 
Jones  on  Easements,  §  430;   Elliot  on  Roads  and  Streets,  §§  18,  144. 

Upon  a  trial  before  a  court  or  referee  an  exception  to  a  general 
finding  of  law,  holding  that  one  party  is  entitled  to  recover  against 
the  other,  raises  the  question  as  to  whether,  upon  all  the  facts  found, 
the  successful  party  was  entitled  to  judgment.  Hemmingway  v. 
Poucher,  98  N.  Y.  281. 


Ch.  4)  CREATION  OP  BASEMENTS  BY   IMPLICATION  541 

The  plaintiff,  upon  her  pleadings  and  upon  the  facts  found,  was 
entitled  to  a  jud.gment  recognizing  her  private  easement  and  granting 
her  some  relief  on  account  of  the  invasion  of  her  rights. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with  costs 
to  abide  the  event. 

CuLLEN,  Ch.  J.,  and  Gray,  Wi;rner,  Willard  Bartlett,  His- 
cocK  and  Collin,  JJ.,  concur. 

Judgment  reversed,  etc.^* 


CITY  OF  BATTLE  CREEK  v.  GOGUAC  RESORT  ASS'N. 

(Supreme  Court  of  Michigan,  1914.     181  Mich.  241,  148  N.  W.  441.) 

Bill  by  the  city  of  Battle  Creek  against  the  Goguac  Resort  Associa- 
tion Limited,  and  others  for  an  injunction.  From  a  decree  for  com- 
plainant, defendants  appeal. 

Bird,  J.  The  complainant,  as  well  as  the  defendant  association,  are 
rijarian  owners  on  Lake  Goguac.  This  lake  is  near  the  city  of  Bat- 
tle Creek,  and  covers  360  acres,  and  is  fed  by  subterranean  springs. 
Complainant  purchased  a  parcel  of  land  bordering  on  the  lake  in  1886, 
and  commenced  to  take  therefrom  its  water  supply  in  1887.  From 
that  time  on,  its  consumption  of  the  water  increased,  until  it  reached 
upwards  of  3,000,000  gallons  per  day  at  the  time  this  suit  was  filed. 
The  defendant  association  'is  the  owner  of  lands  bordering  on  the  lake 
adjoining  those  of  complainants.  It  maintains  a  summerresort  and 
batliing^  beach  during  the  summer  months.  Complainant  has  for  some 
time  objected  to  the  bathing  at  the  resort,  on  the  theory  that  it  pol- 
luted and  rendered  the  water  unfit  for  the  use  of  its  inhabitants.  Its 
protests  were  not  heeded  by  the  association,  nor  by  the  other  defend- 
ants who  own  and  manage  it.  In  order  to  enforce  what  it  conceived 
to  be  its  rights,  this  bill  was  filed  to  perpetually  restrain  the  defendants  t^i^^c^  Xt-lA^ 
from  operating  their  bathing  beach.  The  chancellor  who  heard  the 
case  granted  the  relief  prayed,  and  the  defendants  have  appealed.    The 

18  What  would  be  the  situation  if  the  deed  made  no  mention  of  streets,  but 
referred  for  description  to  a  plat  which  showed  contemplated  streets  touching 
the  property  conveyed? 

Land  is  sold  and  conveyed,  reference  being  made  for  description  to  a  plat 
showing  a  great  many  pi-oposed  new  streets,  only  one  of  which,  however,  touch- 
es the  property  conveyec^  In  which  of  sucn  contemplated  streets,  if  any,  does 
tne  purchaser  acquire  rights ?  What  rights,  if  any,  does  he  acquire?  See  Dan- 
ielson  v.  Sykes.  157  Cal.  6S6.  109  I'ae.  87,  28  L.  R.  A.  (N.  S.)  1024  (1910) ;  Har- 
rington  v.  City  of  Manchester,  76  N.  H.  B47,  82  Atl.  716  (1912). 

What  would  be  the  situation  if  lots  are  sold  and  conveyed  after  reference  to 
a  plat  which  shows  contemplated  streets,  but  no  reference  is  made  to  such  plat 
In  the  deed,  nor  is  there  any  reference  m  the  deed  to  the  proposed  streets? 
See  Pyper  v.  Whitman,  32  R.  I.  510,  SO  Atl.  6,  35  L.  R.  A.  (N.  S.)  938  (1911) : 
Danielson  v.  Sykes,  supra. 

What  if  the  grantor  does  not  own  the  land  on  which  the  contemplated  streets 
are  to  be  laid  out? 


ieiC€^.( 


542  DERIVATIVE  TITLES  (Part  2 

most  serious  question  raised  by  defendants  is  that  the  complainant  has 
no  such  right  to  the  use  of  the  water  as  entitled  it  to  the  relief  granted. 

Both  complainant  and  defendants  are  riparian  owners,  and  as  such, 
in  common  with  others,  they  own  the  bed  of  the  lake,  and  by  virtue 
of  such  ownership  both  have  a  right  to  a  reasonable  use  of  its  waters 
for  domestic,  agricultural,  and  mechanical  purposes.  Clute  v.  Fisher, 
65  Mich.  48,  31  N.  W.  614;  40  Cyc.  p.  635.  Unless  the  complainant 
can  show  that  it  has  some  right  other  than  that  which  arises  by  reason 
of  riparian  ownership,  it  has  no  greater  right  in  the  waters  than  have 
the  defendants.  As  a  riparian  owner,  the  complainant  has  no  right 
to  divert  the  water  for  the  purpose  of  selling  it  to  the  inhabitants  of 
Battle  Creek.  Stock  v.  City  of  Hillsdale,  155  Mich.  375,  119  N.  W. 
435 ;  Smith  v.  City  of  Rochester,  92  N.  Y.  463,  44  Am.  Rep.  393 ; 
Ulbricht  V.  Water  Co.,  86  Ala.  587,  6  South.  78,  4  L.  R.  A.  572,  11 
Am.  St.  Rep.  72;  Lord  v.  Water  Co.,  135  Pa.  122,  19  Atl.  1007,  8 
L.  R.  A.  202,  20  Am.  St.  Rep.  864;  Sparks  Manfg.  Co.  v.  Town  of 
Newton,  57  N.  J.  Eq.  367,  41  Atl.  385. 

The  question  therefore  gets  around  to  this:  Whether  one  riparian 
>wner  is  entitled  to  equitable  relief  as  against  another  riparian  owner, 
0  aid  him  in  diverting  the  water  to  uses  other  than  for  riparian  pur- 
poses. If  this  were  a  suit  by  complainant  to  protect  its  right  to  some 
reasonable  use  of  the  water  incidental  to  its  riparian  ownership,  it 
would  present  a  dififerent  question,  byit  when  it  seeks  relief  oi  tl;iis 
character  to  facilitate  its  business  of  unlawfully  diverting  the  water .^it 
prays  for  relief  to  which  it  is  not  entitleH  as  a  mere  riparian  owner. 
But  counsel  argue  that  the  complainant's  right  is  something  more  than 
a  riparian  right,  and  point  to  a  legislative  act  whereby  the  city  was 
authorized  to  go  beyond  its  corporate  limits  to  acquire  water  rights 
and,  when  acquired,  to  protect  such  rights  against  pollution.  Act  No. 
428,  Local  Acts  of  1887.  We  are  unable  to  see  how  this  act  has  any 
force  in  these  proceedings.  That  act  authorized  the  complainant^to 
go  beyond  its  corporate  limits  and  acquire  water  rights  by  purchase  or 
condemnation,  which  right  it  did  not  then  have  until  the  act  was  passed. 
Houghton  Common  Council  v.  Mining  Co.,  57  Mich.  547,  24  N.  W. 
820.  In  pursuance  of  this  act,  the  city  purchased  a  small  parcel  of 
land  on  the  shore.  Tlie  city  has  never  exercised  its  authority  under 
this  act,  except  to  become  a  riparian  owner.  If  in  pursuance  of  this 
act  complainant  had  acquired  all  the  water  rights  at  Goguac  Lake,  ei- 
ther by  purchase  or  condemnation,  it  would  then  be  in  a  position  to 
insist  upon  what  it  is  now  insisting  upon.  The  act  does  not  attempt 
to  enlarge  the  riparian  rights  of  the  complainant  at  the  expense  of  the 
other  riparian  owners^  and  indeed  the  legislature  would  have  no  _au- 
thority  to  confer  such  rights  upon  the  city  without  compensation,  be- 
ing  made  therefor. 

Another  claim  made  by  complainant  is  that  it  has  acquired  the 
right  by  prescription  to  take  its  water  supply  from  the  lake.    De.£end- 


Ch.  4)  CREATION   OF  EASEMENTS  BY  IMPLICATION  543 

ants'  riparian  rights  began  in  1885.  before  complainant's  did.  When 
complainant  purchased,  it  was  with  the  view  of  putting  down  wells; 
later  it  installed  an  intake.  As  the  use  of  the  water  by  the  city  increas- 
ed, the  lake  was  lowered  to  such  an  extent  that  defendants  filed  a  bill 
to  restrain  complainant  from  lowering  the  water  and  interfering  with 
their  riparian  righTs!  The  city  recognized  the  rights  of  the  defendants 
and  other  riparian  owners  by  diverting  Minges  brook  into  the  lake, 
which  action  brought  the  lake  back  to  its  normal  level,  since  which 
time  it  has  been  so  maintained.  After  diverting  Minges  brook  into  the 
lake,  the  chancery  suit  was  discontinued  by  stipulation.  The  record 
shows  no  such  adverse  use  of  the  water  as  would  ripen,  into  a  prescrip- 
tive right :  but,  even  if  we  assume  to  the  contrary,  the  right  acquired 
would  be  no  more  than  the  right  to  take  the  water  subject  to  the  use 
which  the  defendants  and  their  predecessors  in  title  have  made  of 
it  since  the  resort  was  established  in  1885.  The  prime  object  of  the 
ci_ty  in  filing  this  bill  was  not  to  establish  its  own  right  to  use  the  wa- 
ter as  it  has  been  using  it,  but  to  restrain  defendants  from  making  the  /}^u£P 
u^e  of  it  which  they  have  made  since  1885,  If  this  relief  is  to  be 
granted,  it  should  be  based  upon  some  right.  The  city  has  shown  no 
prescriptive  right,  and  as  a  riparian  owner  it  would  be  entitled  to  no 
such  relief.  Were  the  city  attempting  to  establish  its  right  to  take 
the  water  as  it  has  done  in  the  past,  other  questions  might  arise  which 
are  not  important  on  this  record. 

In  view  of  the  conclusion  reached  upon  this  question,  it  will  be  un- 
necessary to  consider  the  other  questions  raised.  The  decree  of  the 
tjial  ^ourt  will  be  reversed,  and  the  bill  dismissed,  with  costs  to  de- 


a<Jj>Y 


Pendants.       (  J^t-O   dU^-    I 

Stone,  OstimndKr,  and  IV^orE,  JJ.,  concurred  with  Bird,  J. 

Brooke,  J.     I  find  myself  unable  to  agree  with  the  conclusions  of   >Ok 
my  Brother  Bird  in  this  case.     In  addition  to  the  facts  stated  by  him  Yj 
in  his  opinion,  it  should  be  noted  that  the  complainant  city  of  Battle  f^^^tj^    V    * 
Creek  purchased  the  land  upon  which  it  located  its  water-works  from  ^^*fc^ 

one  Surby,  who  was  at  that  time  and  for  many  years  had  been  con-  / 

ducting  a  summer  resort  in  a  small  way  upon  the  banks  of  the  lake. 
He  sold  to  the  city  a  portion  of  his  land  with  the  knowledge  that  the 
city  intended  to  erect  a  pumping  station  thereon  and  to  supply  its  citi- 
zens with  drinking  water  from  the  lake.  His  resort  business  at  that 
time  was  insignificant,  though  the  record  tends  to  show  that  bathing 
by  his  patrons  was  indulged  in  to  some  extent.  Surby  not  only  stood 
by_and  sa\v_the  city  expend  a  large  amount  of  money  in  the  establish- 
merU  of  its  plant,  but  actually  sold  the  land  to  tlie  city  to  be  used 
for  that  purpose.  Some  time  after  the  city  had  placed  in  operation  its 
waterworks,  the  defendant  resort  association  purchased  from  Surby 
his  adjacent  lands,  and  rebuilt  the  buildings  and  added  many  attrac- 
tions in  order  to  induce  large  patronage ;  among  these  was  the  estab- 
lishment of  a  bathing  beach  with  dressing  rooms  and  otlier  necessary 


544  DERIVATIVE  TITLES  (Part  2 

accommodations  for  its  patrons.  It  further  appears  tliat  at  the  time 
the  city  estabHshed  its  pumping  station  upon  the  shores  of  the  lake, 
the  lake  had  no  visible  inlet  or  outlet,  but  was  supposed  to  be  fed  by 
springs.  The  use  of  the  water  by  the  complainant  city  had  a  tendency 
to  reduce  tlie  mean  level  in  the  lake,  and  after  some  years  the  reces- 
sion of  the  waters  became  so  marked  as  to  cause  much  complaint  from 
other  riparian  owners,  whereupon  the  city  secured  tlie  right  to  divert 
a  small  stream  called  Minges  brook  from  its  natural  course  into  the 
southerly  end  of  the  lake,  since  which  time  it  has  been  able,  through 
a  proper  manipulation  of  the  waters  of  such  brook,  to  maintain  the  lake 
at  its  normal  level,  although  in  the  meantime  the  daily  consumption 
of  the  city  has  reached  something  like  3,000,000  gallons.  It  will  thus 
be  seen  that  the  taking  of  the  water  from  tliejake  by  the  complainant 
inflicts  no  injury  upon  the  defendant  or  other  riparian  ownejs.  It 
further  appears  that  since  the  establishment  of  said  plant  the  city  lim- 
its of  the  city  of  Battle  Creek  have  been  extended  so  that  they  now 
embrace  the  entire  site  of  the  waterworks  plant  upon  the  banks  of  the 
lake  as  well  as  a  further  very  considerable  frontage,  apparently  used 
as  a  public  park. 

My  Brother  Bird's  opinion  proceeds  upon  tlie  theory  that  the  use 
complainant  is  making  of  the  waters  of  this  lake  is  both  unreasonable 
and  unlawful.  Under  the  circumstances  disclosed  by  this  record,  I 
find  myself  unable  to  agree  with  him  on  either  proposition.  No  per- 
son has  a  property  right  in  water.  The  right  is  usufructuary  only, 
and  the  modern  authorities  all  tend  to  establish  the  principle  thatjone 
riparian  owner  may  not  restrain  the  use  of  the  water  by  anotHer  ri- 
parian owner  for  nonriparian  purposes,  unless  such  use  results  in 
injury  to  the  first.  The  very  recent  case  of  Stratton  v.  Mt.  Hermon 
Boys'  School,  216  Mass.  83,  103  N.  E.  87,  49  L.  R.  A.  (N.  S.)  57, 
Ann.  Cas.  191 5 A,  768,  is  instructive  upon  this  point.  There  the  de- 
fendant, a  riparian  owner,  took  the  water  from  a  running  stream  and 
diverted  it  to  nonriparian  lands  upon  a  different  watershed,  for  use 
upon  lands  wholly  separated  from  its  riparian  lands.  The  case  con- 
tains a  very  full  review  of  all  the  authorities.    It  is  there  said: 

".The  question  in  such  a  case  is  not  whether  the  diversion,  being 
for  a  legitimate  use,  is  in  quantity  such  as  is  reasonable,  having  regard 
to  all  the  circumstances,  as  it  is  in  cases  of  distinctly  riparian  uses, 
but  only  whether  it  causes  actual  damage  to  the  person  complaining. 
*  *  *  That  there  can  be  no  recovery  for  a  diversion  of  water 
for  a  proper  use,  so  small  in  quantity  and  of  such  character  that  it 
occasions  no  injury  to  the  present  or  future  use  of  the  lower  riparian 
land  is  recognized  in  other  jurisdictions" — citing  cases. 

I  am  further  of  the  opinion  that  the  complainant  is  entitled  to  the 
relief  prayed  upon  the  ground  of  estoppel,  As  before  pointed  out, 
the  parties  held  title  as  riparian  owners  from  a  common  grantor,  Sur- 
by.     It  is  to  my  mind  entirely  clear  that  Surby,  having  sold  a  part 


Ch.  4)  CREATION  OF  EASEMENTS  BY  IMPLICATION  545 

of  the  land  belonging  to  him  upon  the  shore  of  the  lake  for  the  pur- 
pose of  enabling  the  city  to  establish  a  system  of  waterworks  for  the      JjtjJ^xJljty  ^ 
supplying  of  drinking  water  to  its  inhabitants,  would  not  be  heard  to  -^.^^^a/T 
say  that  he  had  the  right  to  make  such  use  of  the  waters  upon  his  ^^^SS^*^^^9^' 
adjoining  lands  as  would  render  waters  taken  by  the  city  unfit  for^V-*^   **-*-^- 
the  contemplated  use.     When  the  resort  association  purchased  from 
Surby,  it  purchased  with  constructive  knowledge  that  the  city  had  ^jfj^^y}/  ^u^t^t^ 
bought  from  its  grantor,  and  with  actual  knowledge  of  the  fact  that     \0\   -     — ^ 
the  city  was  then  taking  its  supply  of  drinking  water  from  the  lake  -<-a.>&«.^"v* 
by  means  of  its  plant,  plainly  yisible.     Under  the  circumstances  I  am  ^aJulXK  A^^*""^ 
of  opinion  that  Surby's  grantee  is  under  exactly  the  same  disability  j^^  1^-C4_ 
that  would  attach  to  Surby  had  he  attempted  to  render  his  grant  value-  /" . 

less  by  a  pollution  of  the  waters  immediately  after  the  grant  was  • 
made. 

I  am  further  unable  to  agree  with  the  proposition  that  the  use  which 
the  defendant  resort  association  is  making  of  the  waters  of  the  lake 
is,  under  the  circumstances,  either  reasonable  or  lawful.  In  the  case 
of  People  V.  Hulbert,  131  Mich.  156,  91  N.  W.  211,  64  L.  R.  A.  265, 
100  Am.  St.  Rep.  588,  the  court  held,  though  with  some  apparent  dif- 
ficulty, that  Mr.  Hulbert,  a  riparian  owner,  could  not  be  punished  for 
bathing  in  this  lake,  although  his  act  was  in  violation  of  a  legislative 
enactment.  Act  No.  428,  Local  Acts  1887.  Whatever  may  be  said 
of  the  propriety  of  this  decision,  and  its  soundness  is  questioned  by 
complainant,  it  is  apparent  that  the  court  was  mindful  of  the  possi- 
bility of  future  developments  when  it  very  carefully  limited  the  ef- 
fects of  the  decision  to  the  single  point  then  in  issue.  Mr.  Justice 
Moore,  in  concluding  his  opinion,  said :  , 

"In  what  we  have  said  we  do  not  mean  to  intimate  that  an  upper  x  /k^^ .A-a^ 
proprietor  may  convert  his  property  into  a  summer  resort,  and  invite  /  ^ 

large  numbers  of  people  to  his  premises  for  purposes  of  bathing,  .gjtd  I  /  3  /  "M*"*^*  ' 
give  them  the  right  possessed  only  by  the  riparian  owner  and  his  f am-  j 
ily.     We  are  undertaking  to  decide  only  the  case  which  is  presented-^ 
here." 

This  court  thus  clearly  foreshadowed  its  probable  action  if  such  a 
case  arose.  It  is  unnecessary  to  predicate  complainant's  right  to  re- 
lief upon  the  fact  that  the  health  of  30,000  people  is  endangered  by 
defendants'  unlawful  acts.  The  city  as  a  riparian  owner,  with  but  a 
single  resident  upon  the  land  who  used  or  was  entitled  to  use  the  wa- 
ters of  the  lake  for  drinking  purposes,  would  have  the  absolute  right 
to  enjoin  his  neighbor  from  making  such  use  of  the  water  as  would 
render  it  unfit  for  drinking  purposes. 

Defendants  filed  a  cross-bill,  in  which  it  asks  that  complainant  be 
restrained  from  diverting  any  of  the  waters  of  the  lake  through  its 
pipes.  Even  if  complainant's  use  of  the  water  was  wrongful,  injunc- 
tive relief  would  be  denied.  Stock  v.  City  of  Hillsdale,  155  Mich.  375, 
119  N.  V/.  435. 

Aig.Pkop. — 35 


546  .  DERIVATIVE  TITLES  (Part  2 

Tam  of  Qninilin  t^^^  <^^P  dprree  of  the  rirnn't  rntirl"  sliniilrl  he-  af- 
firmed,  with  costs  to  complainant. 

McAlvay,  C.  J.,  and  Kuhn  and  Steere,  JJ.,  concurred  with 
Brooke,  J." 

19  See  Tabor  v.  Bradley,  18  N.  T.  109,  72  Am.  Dec.  49S  (1S5S),  wliere_a_iaslit 
to^  flood  remaining  laruls  of  the  grantor  was  claimed  to  have  passed  bv  im|f},fed 
grant  ji noil  couveyajee  of  g^  tract  of  land  with  mill  and  milldaui  thereon.  The 
land  conveyed  was  described  by  metes  and  bounds,  with  no  mention  of  the  mill 
or  dam.  It  appeared  that  the  grantor  had  no  knowledge  of  the  existence  of 
the  mill  and  dam,  and  of  course  no  knowledge  of  the  flooding. 

See,  also,  Pwllbach  Colliery  Co.  v.  Woodman,  [1015]  A.  G.  634,  where  prop- 
erty was  leased  with  power  to  carry  on  thereon  the  trade  of  miners.  Other 
premises  were  leased  by  the  same  landowner  to  a  butcher.  The  colliery  c<mi- 
pany  erected  on  the  premises  demised  to  it  a  screening  ajtparatus,  the  operation 
of  which  resulted  In  the  deposit  of  dust  upon  the  butcher's  buildings.  It  was 
f-oyfptirlptl,  iiitpr  ■•ilin,  by  fhp  fnllierv  comi'iin.\.  in  an  action  against  it  furjnii- 
sance.  that  the  grant  of  the  privilege  to  carry  on  the  trade  of  miners  author- 
ized the  comlEIssxon  or  a  nuiaance  as  against  the  lessor  and  titose  claiming 
under  liim! 


''        — /  ^.  ^     I  c 

Ch.  5)  ESTATES  CREATED  547 


CHAPTER  V  IQ^  J^-ZiA^ 

ESTATES  CREATED         L^^^^  . 


SECTION  1.— ESTATES  IN  FEE  SIMPLE 


LITTLETON'S  TENURES. 

Tenant  in  fee  simple  is  he  which  hath  lands  or  tenements  to  hold  to 
him  and  his  heirs  for  ever.  And  it  is  called  in  Latin,  feodum  simplex, 
for  feodum  is  the  same  that  inheritance  is,  and  simplex  is  as  much  as 
to  say,  lawful  or  pure.  And  so  feodum  simplex  signifies  a  lawful  or 
pure  inheritance.  Quia  feodum  idem  est  quo  hsereditas,  et  simplex 
idem  est  quod  legitimum  vel  purum.  Et  sic  feodum  simplex  idem  est 
quod  hsereditas  legitima,  vel  hsereditas  pura.  For  if  a  man  would  pur- 
chase lands  or  tenements  in  fee  simple,  it  behooveth  him  to  have  these 
words  in  his  purchase,  to  have  and  to  hold  to  him  and  to  his  heirs :  for 
these  wor^s^iis  heirs)  make  the  estate  of  inheritance.^  For  if  a  man 
purchase  lands  by  these  words,  To  have  and  to  hold  to  him  for  ever; 
or  by  these  words,  To  have  and  to  hold  to  him  and  his  assigns  for  ever ; 
in  these  two  cases  he  hath  but  an  estate  f or  jerm_ofJ.ife,.  for  that  there 
lack  these  words  (his  heirsjj  which  words  only  make  an  estate  of  in- 
heritance in  all  feoffments  and  grants.* 

Section  1. 

1  In  many  states  the  necessity  of  usinjr  the  word  "heirs"  hns  been  done  away 
either  expressly  or  Indirectly  by  statute.  Tlie  state  statutes  sliould  be  con- 
sulted. Section  51  of  the  Conveyaiieiiig  Act  (St.  44-45  Vict  c.  41)  provides 
that  in  deeds  executed  after  I)e(einl)er  31,  ISSl,  it  shall  be  suttioient,  in  the  lim- 
itation of  an  estate  in  fee  simple  to  use  the  words  "in  fee  simple,"  without  tlie 
word  "heirs."  In  re  Etliel  and  Mitchell's  and  Hutler's  Contract,  [1901J  1  Cli- 
945,  held  the  words  "in  fee"  not  sutiicient  under  the  statute. 

Even  at  common  law  there  were  exceptions  to  the  rule  requiring  the  word 
"heiis."     See  2  Bl.  Comm.  •lOS,  *109. 

2  "The  grant  'to  A.  and  his  heirs'  and  a  grant  'to  A.  for  life  and  after  his 
decease  to  his  heirs,'  according  to  the  primitive  force  and  effect  of  the  expres- 
sions, were  manifestly  identical,  inasunich  as  they  both  conferred  life  estates 
upon  A.,  and  upon  the  persons  designated  as  his  heii*s  in  succession.  They 
were  still  construed  as  identical,  notwithstanding  the  change  in  the  position 
and  interest  of  the  heir  consequent  upon  the  enlarged  power  of  alienation  in 
the  ancestor;  the  limitation  'to  the  heirs,*  in  both  cases,  ceased  to  confer  di- 
rectly any  estate  upon  the  persons  answering  to  that  designation,  and  was  re- 
ferred to  the  estate  of  the  ancestor,  which,  though  expressed  to  be  in  the  first 
place  for  life,  it  enlarged  to  an  estate  of  inheritance,  so  that  the  heir  took  only 
by  descent.  This  is  the  oiigin  and  simplest  form  of  the  rul^e  in  Shelley's  Case, 
an  ancient  rule  of  great  importance  in  construing  the  Timitations  of  estates, 
which  will  be  noticed  more  fullv  hereafter."  I>eake,  Law  of  Property  in  Land 
[Randall's  Ed.J  24.     See  29  L.  R.  A.  (N.  S.)  9G3  et  seq. 


548  DERIVATIVE  TITLES  (Part  2 

(j^^U)      McCULLOCK  V.  HOLMES.     '^^^^^^<-j 
(Supreme  Court  of  Missouri,  1802.    Ill  Mo.  445,  19  S.  W.  1096.) 

Barclay,  J.  This  is  an  action  of  ejectment  involving  the  title  to  a 
piece  of  land  in  Lincoln  county. 

Tlie  facts  are  admitted. 

The  case  turns  upon  the  effect  to  be  given  to  the  following  clause  in 
a  deed  from  Oliver  Holmes  (the  common  source  of  title)  and  his  wife 
to  Azra  A.  Holmes,  dated,  April  11,  1855,  and  duly  recorded  about  the 
same  time,  viz. : 

"To  have  and  to  hold     *     *     *     unto  him  the  said  Azra  A.  Holmes 
for  and  during  his  natural  life  and  then  to  his  two  children,  Laura 
Eliza  and  Mary  Emily  Holmes,  and  their  heirs  and  assigns  forever, 
and  if  either  of  said  children  shall  die  without  issue  in  the  lifetime  of 
J^  their  father,  then  all  of  said  lands  is  to  go  to  the  survivor." 

,   .  The  chronology  of  the  principal  facts,  affecting  the  controversy,  is 

as  follows : 

First.  Mary  Emily  Holmes  died  without  issue,  some  years  before 
Azra  A.  Holmes. 

Second.  Azra  died  in  April,  1888. 

Third.  He  left  his  widow,  the  defendant  in  possession,  and  his 
daughter,  Laura  Eliza,  one  of  the  plaintiffs,  who  has  intermarried  with 
Mr.  McCullock,  the  other  plaintiff. 

The  fact  that  the  limitation  above  quoted  appears  only  in  the  "haben^ 

"        dujn^clause  of  the  conveyance  to  Azra  A.  Holmes  does  not  deprive  it 

of  its  legal  force  or  effect.    All  parts  of  the  deed  should  be  considered 

***'^'  in  gathering  its  meaning,  and  the  true  intent  it  designs  to  express, 

throughout,  should  be  eft'ectuated. 

In  the  premises  of  this  deed  "A.  A.  Holmes"  is  named  as  grantee, 
while  in  the  habendum  the  extent  of  his  estate  is  defined,  and  the  re- 
mainder now  in  consideration  carved  out. 

All  parts  of  an  instrument  are  to  be  construed  as  consistent  with 
each  other,  if  such  construction  be  possible. 

Where  land  is  conveyed  to  an  individual,  without  adding  to  his 
name,  as  grantee,  the  word  "heirs"  or  other  words  of  inheritance,  the 
fee  thereby  passes  to  him  under  the  law  of  Missouri,  "unless  the  in- 
tent to  pass  a  less  estate  shall  expressly  appear  or  be  necessarily  im- 
plied in  the  terms  of  the  grant."  Rev.  S't.  1889,  §  8834.  Thejntent 
to  pass  a  less  estate  is  very  evident  in  the  present  case,  and  is  lawfully 
expressed,  Farrar  v.  Christy's  Adm'rs  (1857)  24  Mo.  453 ;  Spyve  v. 
Tophani  (1802)  3  East,  115. 

Even  under  the  strictest  common-law  rules  of  conveyancing,  a 
stranger  to  those  mentioned  in  the  premises  of  a  deed  might  be  in- 
troduced in  the  habendum  as  a  grantee  in  remainder.  1  Wood  on  Con- 
veyancing (6  Eng.  Ed.)  Habendum  (B),  p.  336. 

The  limitation  in  the  case  at  bar  is  not  uncertain  or  obscure.    Azra 


Ch.  5)  ESTATES  CREATED  549 

took  a  life  estate  in  possession.    During  its  currency,  one  of  the  pos- 
sible remaindermen  died.     The  other,  the  present  plaintiff,  survived 
Azra.    She  is  plainly  entitled  to  the  estate,  the  contingency  having  been 
resolved  in  her  favor.    The  trial  court  so  held.    Its  judgment  is  affirm-_ 
ed.    Sherwood,  C.  J.,  and  Black  and  Brace,  JJ.,  concur.^ 

3  In  Palmer  v.  Cook,  159  111.  300,  42  N.  E.  796,  50  Am.  St.  Rep.  165  (1896) 
lands  were  conveyed  by  one  Thomas  Stewart  to  Ms  two  children.  Following 
the  description  of  the  property  was  the  follo\ving  clause:  "And  I,  Thomas 
Stewart,  as  for  myself,  retain  possession  and  reserve  the  use,  profits  and  full 
control  during  my  life ;  and  further,  in  case  either  of  the  grantees  dies  with- 
out an  heir,  her  interest  to  revert  to  the  survivor."  The  court  said :  "This 
deed  eifected  an  absolute  fee  simple  conveyance  by  the  first  clause  of  the  deed 
and  vested  the  estate.  By  the  last  clause  an  attempt  is  made  to  mount  a  fee 
upon  a  fee,  which  can  only  be  done  by  executory  devise.  Smith  v.  Kimbell,  153 
111.  368,  38  N.  E.  1029  (1894) ;  Fowler  v.  Black,  136  111.  363.  26  N.  E.  596,  11 
L.  E.  A.  670  (1S91) ;  Giiswold  v.  Hicks,  132  111.  494,  24  N.  E.  63,  22  /^ni.  St. 
Rep.  549  (1890).  It  is  a  further  principle  of  construction  of  deeds,  that  if  the 
terms  used  vest  a  fee  in  the  first  taker,  other  parts  of  the  instrument  showing 
an  intention  to  give  a  less  estate  will  not  control.  Carpenter  v.  Van  Olinder, 
127  111.  42,  19  N.  E.  868,  2  L.  R.  A.  455,  11  Am.  St.  Rep.  92  (1889).  Under  the 
statute,  the  conveyance  being  to  the  grantee  and  her  heirs  and  assigns,  the 
terms  have,  in  law,  a  definite  meaning.  By  the  use  of  terms  of  a  definite  legal 
meaning  the  intention  can  be  determined  from  the  language  used.  If  that 
language  means  a  certain  thing  and  nothing  else,  then  the  only  reasonable  con- 
struction is  that  what  was  intended  was  expressed  in  the  language  used.  The 
language  used  did  not  create  an  estate  in  joint  tenancy  nor  a  life  estate.  Un- 
der these  principles  this  deed  reserved  to  tlie  grantor  a  life  estate  and  vested 
a  fee  in  the  grantees,  and  the  clause,  'and  further,  in  case  either  of  the  grantees 
dies  without  an  heir,  her  interest  to  revert  to  the  survivor,'  must  be  held  to  be 
inoperative,  as  a  limitation  of  the  fee." 

In  Cover  v.  James,  217  111.  309,  75  N.  E.  490  (1905),  lands  were  conveyed  to 
two  of  the  grantoi'"s  children,  with  the  follomng  provision  immediately  fol- 
lowing the  description  of  the  premises:  "In  case  of  the  death  of  either  A.  Ford 
Cover  or  Bessie  Cover,  the  other  to  have  the  whole  of  said  property  without 
litigation."  A.  Ford  Cover  died  before  Bessie  Cover,  and  the  question  was 
whether  the  heirs  of  said  A.  Ford  Cover  took  any  interest.  The  court,  inter 
alia,  said :  "Section  13  of  chapter  30  of  Hurd's  Revised  Statutes  of  1903,  page 
441,  provides  that  'every  estate  in  lands  which  shall  be  granted,  conveyed  or 
devised,  although  other  words  heretofore  necessary  to  transfer  an  estate  of 
inheritance  be  not  added,  shall  be  deemed  a  fee  simple  estate  of  inheritance, 
if  a  less  estate  be  not  limited  by  express  words  or  do  not  api^ear  to  have  been 
granted,  conveyed  or  devised  by  construction  or  operation  of  law.'  Here  the 
deed  does  expressly  state  that  in  case  of  the  death  of  either  of  the  grantees 
the  survivor  shall  have  the  whole  of  the  property,  thus  clearly  limiting  the  es- 
tate granted  to  both  jointly  for  life,  with  the  right  of  survivorship.  It  is  in- 
sisted, however,  by  counsel  for  appellees  that  this  last  provision  cannot  be  giv- 
en effect  because  it  does  not  appear  in  the  granting  clause  of  the  deed,  or,  as 
is  said,  does  appear  in  the  habendum,  and  reliance  is  placed  upon  the  case  of 
Palmer  v.  Cook,  159  111.  300,  42  N.  E.  796,  50  Am.  St.  Rep.  165  (1896).  In  that 
case  a  deed  somewhat  similar  to  the  one  now  before  the  court  was  construed 
as  conveying  the  fee  simple  title  to  the  grantees,  and  it  was  held  that  the  ex- 
pression, 'in  case  either  of  the  grantees  dies  without  an  heir  her  interest  to  re- 
vert to  the  survivor,'  was  an  attempt  to  mount  a  fee  upon  a  fee,  and  was  there- 
fore void.  The  granting  clause  of  that  deed  was  held  to  convey  the  fee  sim- 
ple title  under  the  provisions  of  section  9  of  chapter  30,  supra.  If  a  fee  simple 
title  was  in  fact  granted,  it  is  clear  that  that  estate  could  not  be  limited  or 
qualified  by  the  subsequent  language.  Merely  because  the  deed  was  substan- 
tially in  the  form  prescribed  by  section  9,  however,  a  fee  simple  title  was  not 
necessarily  conveyed.  That  section  prescribes  the  form  of  the  deed,  and  pro- 
vides that  every  deed  substantially  in  that  form  shall  be  deemed  and  held  to  be 
a  conveyance  in  fee  simple  to  the  grantee,  etc. ;   but  it  must  be  construed  in 


550  DERIVATIVE  TITLES  (Part  2 


CARLLEE  V.  ELLSBERRY. 

(Supreme  Court  of  Arkansas,  1907.     S2  Ark.  209,  101  S.  W.  407,  12  L.  R.  A. 
[N.  S.]  956,  lis  Am.  St.  Rep.  60.) 

Battle,  J;  This  case  involves  the  construction  of  so  much  of  a 
deed  executed  by  John  T.  Hamblett  and  wife  to  Georgena  EUsberry 
as  is  in  the  following  words : 

"Know  all  men  by  these  presents,  That  we,  J.  T.  Hamblett  and  Cor- 
delia P.  Hamblett,-  his  wife,  for  and  in  consideration  of  the  sum  of 
one  dollar  to  us  in  hand  paid,  and  for  the  love  and  affection  we  have 

connectiqn  with  section  1^,  supra,  under  which,  if  a  less  estate  he  limited  by 
express  words  or  appear  to  have  been  granted,  conveyed  or  devised  by  construc- 
tion or  operation  of  law,  the  conveyaiue,  not  using  words  heretofore  necessiiry 
to  transfer  an  estate  of  iiilieritnnce.  shall  not  be  deemed  to  convey  a  fee  sim- 
ple estate.  *  *  *  That  the  position  of  counsel  for  aiinellee  and  the  decision 
of  the  conrt  below  do  violence  to  his  expressed  intention  must  be  conceded. 
In  Mirtel  v.  Karl.  i:«  111.  05.  24  N.  E.  55*'.,  S  I..  U.  A.  C5."5  (L^90),  a  warranty 
deed  by  John  IMittel  conveyed  premises  to  'Maria  Jobst  and  Michael  .lobst.  her 
husband,  and  the  survivor  of  them,  in  her  or  his  own  right.'  In  construing 
that  deed,  after  holding  that  the  words  'the  survivor  of  them,'  etc.,  could  not 
be  ignored,  we  say  (i:!.*?  111.  OS,  24  N.  E.  554.  S  h.  R.  A.  655) :  'These  words  were 
placed  in  the  deed  by  the  contrarting  piirties  for  a  purpose,  and  they  cannot 
arl)itrarily  lie  rejected.  In  the  construction  of  written  contracts  it  is  the  duty 
of  the  court  to  ascertain  the  intention  of  the  parties,  and  the  intention,  when 
ascertained,  must  control;  but  in  arriving  at  the  intention,  effect  must  be 
given  to  each  clause,  word  or  term  emi)loyed  by  the  party,  rejecting  none  as 
meaningless  or  surplusage' — citing  Lehndorf  v.  Cope,  122  111.  317,  VA  N.  E.  505 
(1887).  And  after  discussing  the  question  as  to  whether  that  deed  convened 
an  estate  in  joint  tenancy,  we  further  said  (I'-VA  111.  70.  '24  N.  E.  5.55.  8  L.  R.  A. 
655):  "We  think  the  language  of  the  deed,  when  properly  understood,  will  ad- 
ndt  of  but  one  construction,  and  that  is,  that  the  premises  were  conveyed  to 
Maria  and  .Michael  Jobst  for  life,  with  a  contingent  remainder  in  fee  to  the 
survivor.  I5y  the  language  of  the  grant,  to  "Michael  Jobst  and  Maria  Jobst, 
and  the  survivor  of  them,  in  his  or  her  own  right,'"  it  was  doubtless  intended 
that  the  one  who  should  die  first  should  take  only  a  life  estate  in  the  premises, 
with  the  remainder  in  fee  to  the  survivor  and  his  heirs.'  The  authorities  cited 
in  support  of  this  position,  as  well  as  the  reasoning  of  the  learned  judge  who 
wrote  the  opinion,  fully  supjmrted  it.  It  is  there  further  said:  'There  is  no 
way  in  which  it  can  be  held  that  Jobst  and  his  wife  took  the  fee  as  tenants 
in  connnon  without  rejecting  the  clause  in  the  deed  providing  that  the  survivor 
should  take  the  fee,  and  we  are  aware  of  no  rule  of  construction  under  which 
that  can  be  done.  As  is  said  in  Riggin  v.  Love,  72  111.  55:5  (lS74i  a  construction 
which  requires  us  to  reject  an  entire  clause  of  the  deed  is  not  to  be  admitted 
except  from  unaveidable  necessity:  but  the  intention  of  the  parties,  as  mani- 
fested by  the  language  employed  in  the  deed,  should,  so  far  as  practicable,  be 
carried  into  effect.'  So  in  this  case,  whether  the  father  understood  the  differ- 
ence between  the  estates  in  joint  tenancy  and  tenancy  in  conunou  or  not,  he 
marufestly  did  understand  what  his  desire  was,  that  is,  that  the  survivor  of 
his  children,  the  grantees,  should  have  the  entire  estate;  and  under  the  rule 
announced  in  Mittel  v.  Karl  there  is  no  difficulty  in  giving  effect  to  that  in- 
tention. We  think  the  court  below  was  in  error  in  holding  that  A.  Ford  Cover 
and  Bessie  Cover  took  the  estate  as  tenants  in  common  and  in  sustaining  the 
demurrer  to  the  bill  of  the  appellant,  Bessie  Cover.  Under  the  views  here  ex- 
pressed  it  is  clear  that  the  coniplainanrs  in  the  cross-bill  were  entitled  to  no 
relief  under  the  same,  and  whether,  technically,  the  motion  to  strike  it  from  the 
tiles  was  proper  or  not,  is  unimportant."  See,  also,  Baunian  v.  Stoller.  2;!5  111. 
480.  85  N.  E.  057  (1008);  Buck  v.  Garber,  261  111.  378,  103  N.  E.  1059  (1914); 
Graves  v.  AY  heeler,  180  Ala.  412,  61  South.  341  (1913),  ace. 


Ch.  5)  ESTATES  CREATED  ■  551 

for  our  daughter,  Georgena  Ellsberry,  we  hereby  convey,  sell,  give  and 
bequeath  to  the  said  Georgena  Ellsberry,  and  unto  her  heirs  and  assigns 
forever,  the  following  lands  lying  and  being  situate  in  the  county 
of  Woodruff  and  State  of  Arkansas,  to-wit :  Lots  numbered  twelve 
(12),  thirteen,  (13)  and  fourteen  (14)  in  block  number  fourteen  (14)  in 
the  town  of  Augusta,  to  have  and  to  hold  the  same  unto  the  said 
Georgena  Ellsberry  and  unto  her  heirs  and  assigns  forever,  with  all 
the  appurtenances  thereto  belonging.  Provided,  however,  that  should 
the  said  Georgena  Ellsberry  die  without  issue  and  before  her  husband, 
Wm.  M.  Ellsberry  then  the  property  herein  conveyed  is  to  revert  unto 
the  said  Wm.  M.  Ellsberry." 

The  granting  clause  of  the  deed  conveys  the  lands  described  to  the 
grantee  in  fee  simple.    The  habendum  defines  the  estate  the  grantee  is 
to  take  to  be  the  fee  simple,  with  a  proviso  limiting  the  estate  in  cer- 
tain contingencies  to  a  life  estate.    ThejDroviso  or  condition  is  repug-- 
jriantjto_the_grariting  cliiuse.    Which  prevails? 

In  Maker  v.  Lazell,  83  Me.  562,  22  Atl.  474,  23  Am.  St.  Rep.  795, 
the  court  said :  "There  is  one  rule  pertaining  to  the  construction  of 
deeds,  as  ancient,  general  and  rigorous^^s_any  other.  It  is  the  rule 
that  a  grantor  cannot  destroy  his  own  grant,  however  much  he  may 
modify  it  or  load  it  with  conditions, — the  rule  that,  having  once  grant- 
ed an  estate  in  his  deed,  no  subsequent  clause,  even  in  the  same  deed, 
can  operate  to  nullify  it.  11  Bac.  Abr.  665;  Shep.  Touch.  79,  102. 
We  do  not  find  that  this  rule  has  ever  been  disregarded,  or  even  seri- 
ously questioned,  by  courts.  We  find  it  often  stated,  approved,  and 
sometimes  made  a  rule  of  decision.  In  Duke  of  Marlborough  v.  Lord 
Godolphin,  2  Ves.  S'r.  74,  Lord  Chancellor  Hardwicke,  'in  whose  judg- 
ments equity  shone  resplendent,'  declared  that  the  courts  either  of  law 
or  equity  should  not  adopt  such  a  construction  of  an  instrument  of  de- 
vise as  would  defeat  the  interests  given.  In  Cholmondeley  v.  Clinton, 
2  Jac.  &  Walk.  84,  which  was  a  case  most  elaborately,  argued  and  con- 
sidered, it  was  said  by  the  court  that  where  a  limitation  in  a  deed  is 
perfect  and  complete,  it  cannot  be  controlled  by  intention  collected 
from  other  parts  of  the  same  deed."  To  support  this  rule  of  construc- 
tion, the  court  cites  and  comments  upon  the  following  cases :  Budd  v. 
Brooke,  3  Gill  (Md.)  198,  43  Am.  Dec.  321 ;  Ackerman  v.  Vreeland, 
14  N.  J.  Eq.  23 ;  Wilder  v.  Davenport,  58  Vt.  642,  5  Atl.  753 ;  Cutler 
v.  Tufts  (Mass.)  3  Pick.  272;  Wilcoxson  v.  Sprague,  51  Cal.  640; 
Green  Bay  &  Mississippi  Canal  Co.  v.  Hewett,  55  Wis.  96,  12  N.  W. 
382,  42  Am.  Rep.  701. 

In  Green  Bay  &  Mississippi  Canal  Co.  v.  Hewett,  55  Wis.  96,  12  N. 
W.  382,  42  Am.  Rep.  701,  Mr.  Justice  Lyon,  delivering  the  opinion 
of  the  court,  said :  "Which  of  these  two  conflicting  clauses  in  the  deed 
of  1873  should  prevail?  This  question  must  be  determined  by  rules 
of  law  *  *  *  governing  the  construction  of  deeds.  One  of  these 
rules  is  that  a  deed  is  always  construed  most  strongly  against  the  gran- 
tor.   4  GreefarCruise,  Real  Prop.  p.  352,  tit.  32,  ch.  20,  §  13.    Another 


/(^Cc 


^ 


552  DERIVATIVE  TITLES  (Part  2 

is  that  where  there  are  two  clauses  in  a  deed,  and  the  latter  is  contra- 
dictory to  the  former,  the  former  shall  stand.  This  is  an  application 
of  the_ancient  rule  or  maxim  that  'the  first  deed  and  the  last  will  shall 
operate.'  *  *  *  jf  ^^g  subsequent  clause  in  the  deed  of  1873  is 
regarded  as  a  habendum,  then  we  have  this  rule  laid  down  by  Citiise 
in  the  title  above  cited  (chapter  21,  %^75,  76):  '\VlLere  the  habendum  is 
repugnant  and  contrary  to  the  premises,  it  is  void,  and  the  grantee  will 
take  the  estate  given  in  the  premises.  This  is  a  consequence  of  the 
rule  already  stated,  that  deeds  shall  be  construed  most  strongly  against 
the  grantor ;  therefore  he  shall  not  be  allowed  to  contradict  or  retract, 
by  any  subsequent  words,  the  gift  or  grant  made  in  the  premises. 
Thus,  if  lands  are  given  in  the  premises  of  a  deed  to  A.  and  his  heirs, 
habendum  to  A.  for  life,  the  habendum  is  void,  because  it  is  utterly 
repugnant  to  and  irreconcilable  with  the  premises.'  "  *     *     *     * 

The  conveyance  in  fee  simple  carries  with  it  the  power  to  dispose 
of  the  estate  by  deed  or  will.  The  power  of  alienation  is  an  insepara- 
ble incident  of  such  an  estate.  So  the  deed  in  question  conveyed  to 
Mrs.  Ellsberry  tlie  estate  in  fee  simple  with  the  power  to  disposejof_it 
The  limitation  of  it  to  a  life  estate  was  repugnant  to  the  granting 
clause,  and  was  void.  , 

Reversed,  and  remanded  for  proceedings  consistent  with  this  opin- 
ion.^ /  /     / 


FIRST  UNIVERSALIST  SOCIETY  v.  BOLAND. 

(Supreme  Judicial  Court  of  aiassachusetts,  1892.     155  Mass.  171,  29  N.  E.  524, 

15  L.  R.  A.  231.) 

Bill  in  equity^  filed,  in  the  Superior  Court,  for  the  specific  perform- 
ance  of  an  agreement  by  the  .plaintiff  to  sell  and  by  the  defendant  to 
purchase  land.     The  case  was  submitted  to  the  Superior  Court,  and, 

4  A  portion  of  the  opinion,  in  whicli  tlie  court  reviews  a  number  of  cases,  la 
omitted. 

5  Prindle  v.  Orphans  Home,  153  Iowa,  2.34.  133  N.  W.  106  (1911),  ace. 

But  see  Wilsob  v.  Terry,  130  ]\Iich.  73,  89  N.  W.  566  (1902) ;  Jacobs  v.  All 
Persons,  etc.,  12  Cal.  App.  163,  106  Pac.  896  (1909) ;  Midgett  v.  Meekins,  160  N. 
C.  42,  75  S.  E.  728  (1912) ;  Johnson  v.  Barden,  86  Vt.  19,  S3  Atl.  721,  Ann.  Cas. 
1915A,  1243  (1912) ;  Wood  v.  Logue,  107  Iowa,  436,  149  N.  W.  613  (1914) ;  Ken- 
ner  v.  State  (Arlv.)  ISO  S.  W.  492  (1915). 

Lands  were  conveyed  to  X.,  "his  heirs  and  assi,?ns  forever,  subject  to  the 
limitations  hereinafter  expressed  as  to  part  thereof,"  etc.  In  the  habendum 
the  estate  of  the  grantee  as  to  one-half  Avas  limited  "to  his  own  use,  benefit, 
and  behoof  during  his  natural  life,  and  at  his  decease  *  *  *  to  descend  to 
and  the  title  thereof  vested  in  the  children"  of  said  X.  by  him  lawfully  begot- 
ten. The  question  was  as  to  the  estate  acquired  by  X.  Tyler  v.  Moore,  42  Pa. 
374  (1862). 

By  deed  lands  were  conveyed  to  M.,  "her  children  and  assigns  forever,"  with 
habendum  to  M.,  "her  heirs  and  assigns  forever."  Held  that  M.  took  a  fee 
simple,  and  not  as  tenant  in  common  with  her  children.  Bines  v.  Mansfield, 
96  Mo.  394,  9  S.  W.  798  (1888).  Cf.  Karclmer  v.  Hoy,  151  Pa.  383,  25  Atl.  20 
(1892) ;   Morton  v.  Babb,  251  111.  4S8,  96  N.  E.  279  (1911). 

As  to  the  propriety  of  declaring  trusts  in  the  habendum,  see  Nightingale  v. 
Hidden,  7  R.  I.  115  (1S62). 


Ch.  5)  ESTATES  CREATED  553 

after  judgment  for  the  plaintiff,  to  this  court,  on  appeal,  on  an  agreed 
statement  of  facts,  and  was  as  follows : 

On  April  9,  1842,  Joseph  D.  Clark  and  twenty-five  or  thirty  other 
persons  formed  the  plaintiff  society,  with  a  constitution  which  adopted 
as  the  basis  of  its  religious  faith  the  profession  of  belief  accepted  by 
the  General  Convention  of  the  Universalists  at  its  session  at  Win- 
chester, New  Hampshire,  in  1803,  and  provided  for  three  trustees  to 
be  the  executive  power  of  the  society  and  to  see  that  all  votes  of  the 
society  were  carried  out.  On  April  3,  1854,  Clark  for  the  expressed 
consideration  of  nine  hundred  dollars  conveyed  the  land  in  question 
by  a  deed  containing  the  usual  covenants  to  the  plaintiff  society,  "to 
have  and  to  hold  to  the  said  First  Universalist  Society  and  their  as- 
signs, so  long  as  said  real  estate  shall  by  said  society  or  its  assigns  be 
devoted  to  the  uses,  interests,  and  support  of  those  doctrines  of  the 
Christian  religion  embraced  in  the  Confession  of  Faith  adopted  by  the 
General  Convention  of  Universalists  held  at  Winchester,  New  Hamp- 
shire, in  the  year  eighteen  hundred  and  three.  And  when  said  real 
'estate  shall  by  said  society  or  its  assigns  be  diverted  from  the  uses,  in- 
terests, and  support  aforesaid  to  any  other  interests,  uses,  or  purposes 
than  as  aforesaid,  then  the  title  of  said  society  or  its  assigns  in  the 
same  shall  forever  cease,  and  be  forever  vested  in  the  following  named 
persons,  and  such  persons  shall  be  the  legal  representatives  of  any  of 
such  persons  at  the  time  the  same  so  vests  as  aforesaid  in  the  following 
undivided  parts  and  proportions,  to  wit:  to  Stephen  M.  Whipple 
^*°/iooo,  Alanson  Cady  ^^''/looo,  John  F.  Arnold  ^^Yiooo,  Joseph  D. 
Clark  ^"/looo.  [Here  followed  the  names  of  thirty-seven  others  after 
each  of  which  was  placed  a  fraction  in  thousandths.]  To  have  and  to 
hold  the  above  granted  premises,  with  the  privileges  and  appurtenances 
thereto  belonging,  to  the  said  grantees,  their  heirs  and  assigns,  to  them 
and  their  use  and  behoof  forever,  as  aforesaid." 

On  December  16,  1885,  Clark  executed  and  delivered  to  the  plaintiff 
society  a  quitclaim  deed  of  the  same  premises,  "intending  hereby  to 
vest  in  said  society  absolutely  and  in  fee  simple  the  title  to  said  prem- 
ises free  and  discharged  of  all  the  conditions,  restrictions,  and  re- 
straints as  to  the  uses,  interests,  and  purposes  for  which  said  premises 
are  to  be  used  and  enjoyed  by  said  society,  as  set  forth  in  my  said  deed 
of  April  3,  1854,  and  to  enable  said  society  to  sell,  lease,  or  otherwise 
use  and  dispose  of  said  premises  to  all  intents  and  purposes  as  if  no 
restraints  or  contingent  interests  had  been  created  by  my  said  deed  or 
referred  to  therein." 

Upon  the  land  so  conveyed  to  the  plaintiff  a  church  was  erected, 
which  from  the  time  of  its  erection  to  the  present  time  has  .been  occu- 
pied and  used  for  religious  worship  by  the  plaintiff  society,  without 
any  change  in  the  profession  of  faith  mentioned  in  the  deed  of  April 
3,  1854,  or  in  its  constitution.  The  agreement  in  question  was  made 
by  the  parties  on  April  20,  1891,  but  the  defendant,  upon  the  tender  of 
a  deed  to  him  from  the  plaintiff,  refused  to  cai*ry  it  out,  on  the  ground. 


554  DERIVATIVE  TITLES  (Part  2 

among  others,  that  the  plaintiff  society  never  was  seised  in  fee  simple, 
but  at  most  obtained  only  a  qualified  or  conditional  fee,  and  could  not 
convey  a  good  and  clear  title. 

The  parties  having  ascertained  that  between  April  3,  1854,  and 
December  16,  1885,  C[ark  had  gone  into  bankruptcy,  the  plaintiff  waiv- 
ed any  rights  which  it  might  have  under  the  deed  of  December  16, 
1885,  and  relied  for  its  title  upon  the  deed  dated  April  3,  1854. 

Ar.LEX,  J.  The  limitation  over,  which  is  contained  in  the  deed  of 
Clark  to  the  plaintiff  in  1854,  is  void  for  remoteness.  Wells  v.  Heath, 
10  Gray,  17,  25,  26;  Brattle  Square  Church  v.  Grant,  3  Gray,  142, 
152,  63  Am.  Dec.  72}i.  The  fact  that  the  grantor  designated  himself 
as  one  of  the  persons  amongst  many  others  to  take  under  this  limi- 
tation, does  not  have,  the  effect  to  make  the  limitation  valid.  He  was 
to  take  with  the  rest,  and  stand  upon  the  same  footing  with  them. 

Where  there  is  an  invalid  limitation  over,  the  general  rule  is  that 
the  preceding  estate  is  to  stand,  unaffected  by  the  void  limitation.  The 
estate  becomes  vested  in  the  first  taker,  according  to  the  terms  in  which 
it  was  granted  or  devised.  Brattle  Square  Church  v.  Grant,  3  Grav, 
142,  156,  157,  63  Am.  Dec.  725;  Sears  v.  Russell,  8  Gray,  86,  100; 
Fosdick  v.  Fosdick,  6  Allen,  41,  43;  Lovering  v.  Worthington,  106 
Mass.  86,  88;  Lewis  on  Perpetuity,  657.  There  may  be  instances 
in  which  a  void  limitation  might  be  referred  to  for  the  purpose  of  giv- 
ing a  construction  to  the  language  used  in  making  the  prior  gift,  pro- 
vided any  aid  could  be  gained  thereby.  In  the  present  case,  we  dc 
not  see  that  any  such  aid  can  be  gained.  The  estate  given  to  the  first 
taker  does  not  depend  at  all  upon  the  validity  or  invalidity  of  the 
limitation  over,  and  the  construction  of  the  language  used  is  not 
aided  by  a  reference  thereto. 

The  grant  to  the  plaintiff  was  to  have  and  to  hold,  etc.,  "so  long 
as  said  real  estate  shall  by  said  society  or  its  assigns  be  devoted  to 
the  uses,  interests,  and  support  of  those  doctrines  of  the  Christian 
religion,"  as  specified.  "And  when  said  real  estate  shall  by  said 
society  or  its  assigns  be  diverted  from  the  uses,  interests,  and  support 
aforesaid  to  any  other  interests,  uses,  or  purposes  than  as  aforesaid, 
then  the  title  of  said  society  or  its  assigns  in  the  same  shall  forever 
cease,  and  be  forever  vested  in  the  following  named  persons,"  etc. 
These  words  do  not  grant  an  absolute  fee,  nor  an  estate  on  condi-^ 
tion,  but  an  estate  which  is  to  continue  till  the  happening  of  a  certain 
event,  and  then  to  ceas_e.  That  event  may  happen  at  any  time,  or 
it  may  never  happen.  Because  the  estate  may  last  forever,  it  is  a 
fee.  Because  it  may  end  on  the  happening  of  the  event,  it  is  what 
is  usually  called  a  determinable  or  qualified  fee.  The  grant  was  not 
upon  a  condition  subsequent,  and  no  re-entry  would  be  necessary; 
but  by  the  terms  of  the  grant  the  estate  was  to  continue  so  long  as 
the  real  estate  should  be  devoted  to  the  specified  uses,  and  when  it 
should  no  longer  be  so  devoted,  then  the  estate  would  cease  and  deter- 
mine by  its  own  limitation.    Numerous  illustrations  of  words  proper  to 


<3h.  5)  ESTATES  CREATED  555 

create  such  qualified  or  determinable  fees  are  to  be  found  in  the  books, 
one  of  which,  as  old  as  Walsingham's  Case,  2  Plowd.  557,  is  "as  long 
as  the  church  of  St.  Paul  shall  stand."  Brattle  Square  Church  v.  Grant, 
3  Gray,  142,  147,  63  Am.  Dec.  725;  Easterbrooks  v.  Tillinghast,  5 
Gray,  17;  Ashley  v.  Warner,  11  Gray,  43;  Attorney  General  v.  Mer- 
rimack Manuf.  Co.,  14  Gray,  586,  612;  Fifty  Associates  v.  Howiand, 
11  Mete.  99,  102;  Owen  v.  Field,  102  Mass.  90,  105;  1  Washb.  Real 
Prop.  (3d  Ed.)  79;  2  Washb.  Real  Prop.  (3d  Ed.)  20,  21  ;  4  Kent, 
Com.  126,  127,  132,  note;  2  Crabb,  Real  Prop.  §§  2135,  2136.  2  Flint. 
Real  Prop.  230,  232;    Shep.  Touchst.  121,  125. 

A  question  or  doubt,  however,  has  arisen,  though  not  urged  by 
counsel  in  this  case,  whether  after  all  there  is  now  any  such  estate 
as  a  qualified  or  determinable  fee,  or  whether  this  form  of  estate 
was  done  away  with  by  the  statute  Quia  Emptores.  See  Gray,  Rule 
against  Perpetuities,  §§  31-40,  where  the  question  is  discussed  and  au- 
thorities are  cited.  We  have  considered  this  question,  and  whatever 
may  be  the  true  solution  of  it  in  England,  where  the  doctrine  of  tenure 
still  has  some  significance,  we  think  the  existence  of  such  an  estate 
as  a  qualified  or  determinable  fee  must  be  recognized  in  this  country, 
and  such  is  the  general  consensus  of  opinion  of  courts  and  text  writ- 
ers. Jamaica  Pond  Aqueduct  v.  Chandler,  9  Allen,  159,  168;  Leonard 
V.  Burr,  18  N.  Y.  96 ;  Gillespie  v.  Broas,  23  Barb.  (N.  Y.)  370 ;  State 
V.  Brown,  27  N.  J.  Law,  13;  Henderson  v.  Hunter,  59  Pa.  335 ;  Wig- 
gins Ferry  Co.  v.  Ohio  &  Mississippi  Railway,  94  111.  83,  93;  1 
Washb.  Real  Prop.  (3d  Ed.)  76-78;  4  Kent,  Com.  9,  10,  129.  See, 
also,  of  English  works  in  addition  to  citations  above,  Shep.  Touchst. 
101;  2  Bl.  Com.  109,  154,  155;  1  Cruise  Dig.  tit.  1,  §§  72-76;  2 
Flint.  Real  Prop.  136-138;  1  Prest.  Est.  431,  441;  Challis,  Real 
Prop.   197-208. 

Since  the  estate  of  the  plaintiflf  may  determine,  and  since  there  is 
no  vaHd  limitation  over,  it  follows  that  there  is  a  possibility  of  re- 
verter in  the  original  grantor,  Claik.  This  is  similar  to,  though  not 
quite  identical  with,  the  possibility  of  reverter  which  remains  in  the 
grantor  of  land  upon  a  condition  subsequent.  The  exact  nature 
and  incidents  of  this  right  need  not  now  be  discussed,  l^ut  it  repre- 
sents whatever  is  not  conveyed  by  the  deed,  and  it  is  the  possibility 
that  the  land  may  revert  to  the  grantor  or  his  heirs  when  the  granted 
estate  determines.  Challis,  Real  Prop.  31,  63-65,  153,  174,  198,  200, 
212;  1  Prest.  Est.  431,  471;  Newis  v.  Lark,  2  Plowd.  403,  413; 
Shep.  Touchst.  120;  2  Washb.  Real  Prop.  (3d  Ed.)  20,  579:  4  Kent, 
Com.  10;  Smith  v.  Harrington,  4  Allen,  566,  567;  Attorney  General  v. 
Merrimack  Manuf.  Co.,  14  Gray,  586,  612;  Brattle  Square  Church  v. 
Grant,  3  Gray,  142,  147-150,  63  Am.  Dec.  725;  Owen  v.  Field,  102 
Mass.  90,  105,  106;  Gillespie  v.  Broas,  23  Barb.  (N.  Y.)  370;  Gray, 
Rule  against  Perpetuities,  §§  33,  34,  39,  and  cases  cited. 

Clark's  possibility  of  reverter  is  not  invalid  for  remoteness.  It  has 
been  expressly  held  by  this  court,  that  such  possibility  of   reverter 


556  DERIVATIVE  TITLES  (Part  2 

upon  breach  of  a  condition  subsequent  is  not  within  the  rule  against 
perpetuities.  Tobey  v.  Moore,  130  Mass.  448;  French  v.  Old  South 
Society,  106  Mass.  479.  If  there  is  any  distinction  in  this  respect  be- 
tween such  possibility  of  reverter  and  that  which  arises  upon  the  de- 
termination of  a  qualified  fee,  it  would  seem  to  be  in  favor  of  the 
latter.  But  they  should  be  governed  by  the  same  rule.  If  one  is 
not  held  void  for  remoteness,  the  other  should  not  be.  The  very 
many  cases  cited  in  Gray,  Rule  against  Perpetuities,  §§  305-312,  show 
conclusively  that  the  general  understanding  of  courts  and  of  the  pro- 
fession in  America  has  been  that  the  rule  as  to  remoteness  does  not  ap- 
ply; though  the  learned  author  thinks  this  view  erroneous  in  prin- 
ciple. 

We  have  no  occasion  to  consider  whether  the  possibility  of  re- 
verter would  or  would  not  pass  to  an  assignee  in  bankruptcy  or  in- 
solvency, because  the  plaintiff  expressly  waived  any  right  it  might 
have  under  the  second  deed  from  Clark,  and  we  have  not,  therefore, 
felt  at  liberty  to  consider  the  second  deed,  and  have  been  confined  to 
the  construction  and  effect  of  the  first  deed.  See  Rice  v.  Boston  & 
•Worcester  Railroad,  12  Allen,  141.  This  being  so,  the  plaintiff's  titk 
must  be  deemed  imperfect,  and  the  entry  must  be:   Bill  dismissed. 


-ff-v 


AU 


SECTION  2.— ESTATES  IN  FEE  TAIi; 


STATUTE  DE  DONIS  CONDITIONALIBUS. 

First,  concerning  lands  that  many  times  are  given  upon  condition, 
that  is,  to  wit,  where  an}'-  giveth  his  land  to  any  man  and  his  wife,  and 
to  the  heirs  begotten  of  the  bodies  of  the  same  man  and  his  wife, 
with  such  condition  expressed  that  if  the  same  man  and  his  wife  die 
without  heir  of  their  bodies  between  them  begotten,  the  land  so  given 
shall  revert  to  the  giver  or  his  heir;  in  case  also  where  one  giveth 
lands  in  free  marriage,  which  gift  hath  a  condition  annexed,  though 
it  be  not  expressed  in  the  deed  of  gift,  which  is  this,  that  if  the  hus- 
band and  wife  die  without  heir  of  their  bodies  begotten,  the  land  so 
gi,ven  shall  revert  to  the  giver  or  his  heir ;  in  case  also  where  one  giveth 
land  to  another  and  the  heirs  of  his  body  issuing,  it  seemed  very  hard 
and  yet  seemeth  to  the  givers  and  their  heirs,  that  their  will  being 
expressed  in  the  gift  was  not  heretofore  nor  yet  is  observed.  In  all  the 
cases  aforesaid  after  issue  begotten  and  born  between  them,  to  whom 
the  lands  were  given  under  such  condition,  heretofore  such  feoffees 
had  power  to  aliene  the  land  so  given,  and  to  disinherit  their  issue 
of  the  land,  contrary  to  the  minds  of  the  givers,  and  contrary  to  the 
form  expressed  in  the  gift.     And  further,  when  the  issue  of  such 


Ch.  5)  ESTATES  CREATED  557 

feoffee  is  failing,  the  land  so  given  ought  to  return  to  the  giver  or  his 
heir  by  form  of  gift  expressed  in  the  deed,  though  the  issue,  if  any 
were,  had  died;  yet  by  the  deed  and  feoffment  of  them,  to  whom 
land  was  so  given  upon  condition,  the  donors  have  heretofore  been 
barred  of  their  reversion  of  the  same  tenements  which  was  directly 
repugnant  to  the  form  of  the  gift :  wherefore  our  lord  the  king,  per- 
ceiving how  necessary  and  expedient  it  should  be  to  provide  remedy 
in  the  aforesaid  cases,  hath  ordained,  that  the  will  of  the  giver  ac- 
cording to  the  form  in  the  deed  of  gift  manifestly  expressed  shall 
be  from  henceforth  observed,  so  that  they  to  whom  the  land  was 
^iven  under  such  condition  shcill  have  no  power  to  aliene  the  land  so 
given,  but  that  it  shall  remain  unto  the  issue  of  them  to  whom  it  was 
given  after  their  death,  or  shall  revert  unto  the  giver  or  his  heirs  if 
issue  fail,  either  by  reason  that  there  is  no  issue  at  all,  or  if  any  issue 
be,  it  fail  by  death.-the.,heir„of  such  issue  failing. .  Neither  shall  the 
second  husband  of  any  such  woman  from  henceforth  have  anything 
in  the  land  so  given  upon  condition  after  the  death  of  his  wife,  by 
the  law  of  England,  nor  the  issue  of  the  second  husband  and  wife 
shall  succeed  in  the  inheritance,  but  immediately  after  the  death  of 
the  husband  and  wife,  to  whom  the  land  was  so  given,  it  shall  come 
to  their  issue  or  return  unto  the  giver  or  his  heir  as  before  is  said. 
And  forasmuch  as  in  a  new  case  new  remedy  must  be  provided  this 
manner  of  writ  shall  be  granted  to  the  party  that  will  purchase  it. 
*  *  *  The  writ  whereby  the  giver  shall  recover  when  issue  fail- 
eth  is  common  enough  in  the  chancery.  And  it  is  to  wit  that  this 
statute  shall  hold  place  touching  alienation  of  land  contrary  to  the  form 
of  gift  hereafter  to  be  made,  and  shall  not  extend  to  gifts  made  before. 
And  if  a  fine  be  levied  hereafter  upon  such  lands  it  shall  be  void  in 
the  law,  neither  shall  the  heirs  or  such  as  the  reversion  belongeth  unto, 
though  they  be  of  full  age,  within  England,  and  out  of  prison,  need 
to  make  their  claim. 

Westm.  II,  c.  1,  13  Edw.  I,  A.  D.  1285. 


LITTLETON'S  TENURES. 

Tenajitjn  fee_  tail  is  by  force  of  the  statute  of  W.  2,  cap.  1,  for  be- 
fore the  said  statute,  all  inheritances  were  fee  simple ;  for  all  the 
gifts  which  be  specified  in  that  statute  were  fee  simple  conditional  at 
the  common  law,  as  appeareth  by  the  rehearsal  of  the  same  statute. 
And  now  by  this  statute,  tenant  in  tail  is  in  two  manners,  that  is  to 
say,  tenant  in  tail  general,  and  tenant  in  tail  special. 

Section  13. 


558  DERIVATIVE  TITLES  (Part  2 


COKE  UPON  LITTLETON. 

"Before  the  said  statute  all  inheritances  were  fee  simple."  Here 
fee  simple  is  taken  in  his  large  sense,  including  as  well  conditional 
or  qualified,  as  absolute,  to  distinguish  them  from  estates  in  tail  since 
the  said  statute.  Before  which  statute  of  donis  conditionalibus,  if 
land  had  been  given  to  a  man,  and  to  the  heirs  males  of  his  body,  the 
having  of  an  issue  female  had  been  no  performance  of  the  condition ; 
but  if  he  had  issue  male,  and  died,  and  the  issue  male  had  inherited, 
yet  he  had  not  had  a  fee  simple  absolute;  for  if  he  had  died  without 
issue  male,  the  donor  should  have  entered  as  in  his  reverter.  By  hav- 
ing of  issue,  the  condition  was  performed  for  three  purposes :  First, 
to  alien :  Secondly,  to  forfeit :  Thirdly,  to  charge  with  rent,  common, 
or  the  like.  But  the  course  of  descent  was  not  altered  by  having  issue ; 
for  if  the  donee  had  issue  and  died,  and  the  land  had  descended  to  his 
issue,  yet  if  that  issue  had  died  (without  any  alienation  made)  without 
issue,  his  collateral  heir  should  not  have  inherited,  because  he  was 
not  within  the  form  of  the  gift,  viz.  heir  of  the  body  of  the  donee. 
Lands  were  given  before  the  statute  in  frank-marriage,  and  the  donees 
had  issue  and  died,  and  after  the  issue  died  without  issue;  it  was 
adjudged,  that  his  collateral  issue  shall  not  inherit,  but  the  donor  shall 
re-enter.  So  note,  that  the  heir  in  tail  had  no  fee  simple  absolute  at 
the  common  law,  though  there,  weje^  divers  descents, 

If  lands  had  been  given  to  a  man  and  to  his  heirs  males  of  his  body, 
and  he  had  issue  two  sons,  and  the  eldest  had  issue  a  daughter,  the 
daughter  was  not  inheritable  to  the  fee  simple,  but  the  younger  son 
per  formam  doni.  And  so  if  land  had  been  given  at  the  common  law 
to  a  man  and  the  heirs  females  of  his  body,  and  he  had  issue  a  son  and 
a  daughter,  and  died,  the  daughter  should  have  inherited  this  fee 
simple  at  the  common  law ;  for  the  statute  of  donis  conditionalibus 
createth  no  estate  tail,  but  of  such  an  estate  as  was  fee  simple  at  the 
common  law,  and  it  is  descendable  in  such  form  as  it  was  at  the  com- 
mon law.  If  the  donee  in  tail  had  issue  before  the  statute,  and  the  is- 
sue had  died  without  issue,  the  alienation  of  the  donee  at  the  common 
law,  having  no  issue  at  that  time,  had  not  barred  the  donor. 

If  donee  in  tail  at  the  common  law  had  aliened  before  any  issue 
had,  and  after  had  issue,  this  alienation  had  barred  the  issue  be- 
cause he  claimed  a  fee  simple;  yet  if  that  issue  had  died  without  issue, 
the  donor  might  re-enter,  for  that  he  aliened  before  any  issue,  at 
what  time  he  had  no  power  to  alien  to  bar  the  possibility  of  the  donor. 

In  gifts  in  tail  these  words  (heirs)  are  as  necessary,  as  in  feoffment^ 
and  grants ;  for  seeing  every  estate  tail  was  a  fee  simple  at  the  com- 
mon law,  and  at  the  common  law  no  fee  simple  could  be  in  feoffments 
and  grants  without  these  words  (heirs),  and  that  an  estate  in  tail  is 
but  a  cut  or  restrained  fee,  it  followeth,  that  in  gifts  in  a  man's  life- 
time no  estate  can  be  created  without  these  words  (heirs),  unless  it 


Ch.  5)  ESTATES  CREATED  559 

be  in  case  of  frank-marriage,  as  hereafter  shall  be  shewed.  And  where 
Littleton  saith  (heirs),  yet  heir  in  the  singular  number  in  a  special 
case  may  create  an  estate  tail,  as  appeareth  by  39  Ass.  p.  20.  hereafter 
mentioned.  And  >et  if  a  man  give  lands  to  A.  et  hseredibus  de  corpore 
suo,  the  remainder  to  B.  in  forma  prsedicta,  this  is  a  good  estate  tail  to 
B.  for  that  in  forma  prasdicta  do  include  the  other.  If  a  man  letteth 
lands  to  A.  for  life,  the  remainder  to  B.  in  tail,  the  remainder  to  C. 
in  forma  preedicta,  this  remainder  is  void  for  the  uncertainty.  But  if 
the  remainder  had  been,  the  remainder  to  C.  in  eadem  forma,  this  had 
been  a  good  estate  tail ;  for  idem  semper  proximo  antecedenti  ref ertur. 
If  a  man  give  lands  or  tenements  to  a  man,  et  semini  suo,  or  exitibus 
vel  prolibus  de  corpore  suo,  to  a  man,  and  to  his  seed,  or  to  the  issues 
or  children  of  his  body,  he  hath  but  an  estate  for  life;  for  albeit  that 
the  statute  provideth.  that  voluntas  donatoris  secundum  forman  in 
charta  doni  sui  manifeste  expressam  de  caetero  observetur,  yet  that 
will  and  intent  must  agree  with  the  rules  of  law.  And  of  this  opinion 
was  our  author  himself,  as  it  appeared  in  his  learned  reading  afore- 
mentioned upon  this  statute,  where  he  holdeth,  if  a  man  giveth  land  to 
a  man  et  exitibus  de  corpore  suo  legitime  procreatis,  or  semini  suo,  he 
hath  but  an  estate  for  life,  for  that  there  wanteth  words  of  inheritance. 

"Of  his  body."  These  words  are  not  so  strictly  required  but  that 
they  may  be  expressed  by  words  that  amount  to  as  much :  for  the  ex- 
ample that  the  statute  of  W.  2  putteth  hath  not  these  words  (de  cor- 
pore) but  these  words  (haeredibus)  viz. :  Cum  aliquis  dat  terram  suam 
alicui  viro  et  ejus  uxori  et  hseredibus  de  ipsis  viro  et  muliere  procreatis. 
If  lands  be  given  to  B.  et  hseredibus  quos  idem  B.  de  prima  uxore  sua 
legitime  procrearet,  this  is  a  good  estate  in  especial  tail  (albeit  he  hath 
no  wife  at  that  time)  without  these  words  (de  corpore).  So  it  is  if 
lands  be  given  to  a  man,  and  to  his  heirs,  which  he  shall  beget  of  his 
wife,  or  to  a  man  et  hseredibus  de  carne  sua,  or  to  a  man  et  haeredibus 
de  se.  In  all  these  cases  these  be  good  estates  in  tail,  and  yet  these 
words  de  corpore  are  omitted. 

It  is  holden  by  some  opinions,  that  if  there  be  grandfather,  father 
and  son,  and  lands  are  given  to  the  grandfather,  and  to  his  heirs  be- 
gotten by  the  father,  the  father  dieth,  the  grandfather  dieth,  the  son 
is  in  as  heir  to  the  grandfather  begotten  upon  the  body  of  his  father, 
and  the  wife  of  the  grandfather  in  that  case  shall  be  endowed.  But 
certain  it  is,  that  in  some  cases  one  shall  have  the  land  per  formam 
doni  that  is  not  issue  of  the  body  of  the  donee,  which  see  Section  30. 

"Begotten."  This  word  may  in  many  cases  be  omitted  or  expressed 
by  the  like,  and  yet  the  estate  in  tail  is  good :  as  hseredibus  de  carne, 
hseredibus  de  se,  hsered'  quos  sibi  contigerit,  &c.  as  is  aforesaid;  and 
where  the  word  of  Littleton  is,  ingendered  or  begotten,  procreatis,  yet 
if  the  word  be  procreandis,  or  quos  procreaverit,  the  estate  in  tail  is 
good ;  and  as  procreatis  shall  extend  to  the  issues  begotten  afterwards, 
so  procreandis  shall  extend  to  the  issues  begotten  before. 

Co.  Litt.  19a,  20a,  b. 


560 


DERIVATIVE  TITLES  (Part  2 


EWING  V.  NESBITT. 

(Supreme  Court  of  Kansas,  1913.     SS  Kan.  70S,  129  Pac.  1131.) 

BuRCH,  J.  In  the  year  1893  John  Ewing  made  his  will.  The  fourth 
paragraph  reads  as  follows : 

"Fourth:  I  will  and  bequeath  to  my  daughter,  Mary  A.  Nesbitt,  nee 
Ewing,  and  to  the  heirs  of  her  body,  the  south  half  (y^)  of  the  north- 
west quarter  (i/4)  of  section  No.  twenty-one  (21),  township  thirteen 
(13),  of  range  twenty-four  (24),  in  Johnson  county,  Kansas." 

Devises  using  the  same  language  were  made  to  the  testator's  other 
children,  four  in  number.  Besides  these  the  will  contained  four  other 
devises,  which  were  expressly  stated  to  be  "free  and  clear  of  all  en- 
tailment," thus  clearly  indicating  the  intention  of  the  testator  to  cre- 
ate estates  tail  by  the  phraseology  employed  in  paragraph  4  and  those 
like  it  In  1895  John  Ewing  died,  leaving  as  his  heirs  the  five  chil- 
dren who  were  the  beneficiaries  of  his  will.  The  will  was  duly  pro- 
bated, the  estate  was  administered  and  closed,  and  Mary  A.  Nesbitt 
entered  into  possession  of  the  tract  of  land  devised  to  her.  In  the 
year  J 909  she  died  without  having  borne  children  and  was  survived  by 
her  husband,  William  J.  Nesbitt,  who  continued  in  possession  of  the 
land.  Soon  after  Mary  A.  Nesbitt's  death  her  brothers  and  sisters 
commenced  an  action  of  ejectment,  and  for  rents  and  profits,  against 
William  J.  Nesbitt,  claiming  to  be  owners  in  fee  simple.  He  answered 
claiming  a  one-fifth  interest  in  the  land  and  praying  for  partition. 
Judgment  was  rendered  for  the  defendant  and  the  plaintiffs  appeal^ 

The  will  contained  a  residuary  clause  in  which  the  testator  gave  to 
his  children  surviving  him,  share  and  share  alike,  "all  other  property, 
goods,  chattels,  moneys,  stocks,  credits,  and  effects"  of  which  he  might 
die  seized.  The  defendant  claims  that  his  wife  was  the  donee  of  an 
estate  tail ;  that  the  donor  retained  a  reversionary  interest  in  fee  sim- 
ple expectant  upon  the  estate  tail;  that  if,  by  virtue  of  the  residuary 
clause  of  the  will,  this  reversion  was  not  disposed  of  it  descended, 
upon  the  death  of  the  donor,  to  his  heirs,  one  of  whom  was  his  daugh- 
ter, Mary  A.  Nesbitt;  and  that  upon  her  death  the  defendant,  as  her 
surviving  husbajd,,  took  her ^.hare^af  the  fee.^which  was  gneifif tli^..  If, 
however,  the  residuary  clause  of  the  will  was  effectual  to  devise  the 
reversion  to  the  testator's  children,  Mary  A.  Nesbitt  took  a  one-fifth 
interest  which,  upon  her  death,  descended  to  the  defendant.  Under 
either  theory  the  defendant's  claim  to  a  one-fifth  interest  in  the  land 
is  valid  if  the  law  of  tliis  state  recognizes  estates  tail  as  they  existed 
under  the  common  law  of  England  at  the  time  of  the  colonization  of 
this  country. 

Under  the  early  common  law  a  grant  to  a  man  and  the  heirs  of  his 
body  was  a  grant  of  a  fee  on  condition  that  he  had  heirs  of  his  body. 
The  fee  so  granted  was  designated  a  conditional  fee.     If  the  donee 


Ch.  5)  ESTATES  CREATED  561 

had  no  heirs  of  his  body,  the  condition  was  not  performed  arid  the  land 
reverted  to  the  donor.  If  heirs  of  the  donee's  body  were  bom,  the 
condition  was  regarded  as  performed  and  the  donee  was  at  liberty  to 
make  a  conveyance  which  would  bar  him,  his  issue,  and  the  donor's 
reversion.  He  could  likewise  charge  the  land  with  rents  and  encum- 
brances which  would  bind  his  issue,  and  the  estate  was  forfeitable 
for  his  treason.  If  the  condition  were  performed  but  the  donee  made 
no  conveyance,  the  land  descended,  upon  his  death,  to  the  specified 
issue,  who  were  at  liberty  to  convey.  If  they  made  no  conveyance 
the  land  reverted  to  the  donor.  If  the  condition  were  performed  but 
the  issue  died,  and  the  donee  then  died  without  having  made  a  con- 
veyance, the  land  reverted  to  the  donor.  In  order  to_barJ:he  pos- 
sibility  of  reverter  to  the  donor  and  to  restore  the  descent  to  its  or-  • 
dinary  course  under  the  common  law,  donees  of  conditional  fees  were 
in  the  habit  of  making  conveyances  as  soon  as  issue  was  born  and 
taking  back  warranty  deeds.  To  stop  this  practice,  which  evaded  the 
condition  and  defeated  the  intention  of  the  donor,  the  nobility  of  the 
realm,  who  were  desirous  of  perpetuating  family  possessions,  procured 
the  passage  of  the  statute  of  Westminster  II,  known  as  the  statute  y_ 

_^de  donis  conditionalibus."     13  Edw.  I,  c.   1,  June  28,   1285.     This.  "^^ 

statute  took  away,  the  power  of  alienation  and  declared  that  the  will  of 
the  donor,  plainly  expressed,  should  be  observed,  and  that  tenements 
givelrTto  a  man  and  the  heirs  of  his  body  should  go  to  his  issue,  if  there 
were  any,  and  if  not  should  revert  to  the  donor.  The"  judges  inter- 
preted this  statute  to  mean  that  the  donee  no  longer  took  a  conditional 
fee  capable  of  being  disposed  of  as  soon  as  issue  was  bom,  but  that 
he  took  a  particular  estate,  denominated  an  estate  tail,  and  that  in- 
stead of  a  possibility  of  reverter  only  remaining  in  the  donor,  he  had 
a  reversion  in  fee  simple  expectant  upon  the  failure  of  issue.  Some 
of  the  social  consequences  of  this  statute  are  thus  described  by  Black- 
stone  : 

"Children  grew  disobedient  when  they  knew  they  could  not  be  set 
aside ;  farmers  were  ousted  of  their  leases  made  by  tenants  in  tail ;  for 
if  such  leases  had  been  valid,  then  under  colour  of  long  leases  the  issue 
might  have  been  virtually  disinherited ;  creditors  were  defrauded  of 
their  debts ;  for,  if  a  tenant  in  tail  could  have  charged  his  estate  with 
their  payment,  he  might  also  have  defeated  his  issue,  by  mortgaging 
it  for  as  much  as  it  was  worth ;  innumerable  latent  entails  were  pro- 
duced to  deprive  purchasers  of  the  lands  they  had  fairly  bought;  of 
suits  in  consequence  of  which  our  ancient  books  are  full :  and  treasons 
were  encouraged,  as  estates-tail  were  not  liable  to  forefeiture,  longer 
than  for  the  tenant's  life.  So  that  they  were  justly  branded,  as  the 
source  of  new  contentions,  and  mischiefs  unknown  to  the  common 
law;  and  almost  universally  considered  as  the  common  grievance  of 
the  realm."    2  Commentaries,  *116. 

Notwithstanding  these  mischiefs,  the  statute  forms  one  of  the  fun- 
Aig.Prop. — 36 


5G2  DERIVATIVE  TITLES  (Part  2 

damental  institutes  of  the  land  law  of  England  which  three  and  a  quar- 
ter centuries  later  was  transplanted  in  the  New  World. 

Before  the  settlement  at  Jamestown,  in  the  fourth  year  of  James  I 
(1607),  a  number  of  statutes  had  been  passed  whereby  the  privileges 
attending  estates  tail  were  much  abridged  They  were  made  forfeit- 
able for  treason.  26  Henry  VIII,  c.  13.  Certain  leases  by  the  tenant 
in  tail  not  prejudicial  to  the  issue  were  allowed  to  be  good  in  law.  32 
Henry  VIII,  c.  28.  The  statute  of  fines  (4  Henry  VII,  c.  24)  was 
construed  to  permit  the  tenant  in  tail  and  his  heirs  to  be  barred  by  levy- 
ing a  fine  {32  Henry  VIII,  c.  36).  Such  estates  were  chargeable  with 
the  payment  of  certain  debts  due  the  king  (33  Henry  VIII,  c.  39), 
and  by  construction  of  the  statute,  43  Eliz.  c.  4,  an  appointment  to 
charitable  uses  by  a  tenant  in  tail  was  held  to  be  good,  2  Bl.  Com.  117 
et  seq.  The  most  serjous  blow,  however,  to  the  evils  fostered  by  es- 
tates tail  under  the  statute  de  donis  was  struck  by  a  bold  piece  of 
judicial  legislation.  In  Taltatum's  case,  reported  in  Year  Book.  12 
Edw.  IV,  19  (1472),  the  judges,  upon  consultation,  held  that  a  com- 
mon recovery  suffered  by  a  tenant  in  tail  accomplished  the  complete 
destruction  of  the  estate  tail..  This  mode  of  barring  estates  tail  is 
thus  described  in  1  Washburn  on  Real  Property  (6th  Ed.)  §  186: 

"This  was  a  fictitious  suit  brought  in  the  name  of  the  person  who 
was  to  purchase  the  estate,  against  the  tenant  in  tail  who  was  willing 
to  convey.  The  tenant,  instead  of  resisting  this  claim  himself,  under 
the  pretence  that  he  had  acquired  his  title  of  some  third  person  who 
had  warranted  it,  vouched  in,  or,  by  a  process  from  the  court,  called 
his  third  person,  technically  the  vouchee,  to  come  in  and  defend  the 
title.  The  vouchee  came  in  as  one  of  the  dramatis  personce  of  this 
judicial  farce,  and  then  without  saying  a  word  disappeared  and  was 
defaulted.  It  was  a  principle  of  the  feudal  law  adopted  thence  by 
the  common  law,  that  if  a  man  conveyed  lands  with  a  warranty,  and 
the  grantee  lost  his  estate  by  eviction  by  one  having  a  better  title,  he 
should  give  his  warrantee  lands  of  equal  value  by  way  of  recompense. 
And  as  it  would  be  too  barefaced  to  cut  off  the  rights  of  reversion  as 
well  as  of  the  issue  in  tail,  by  a  judgment  between  the  tenant  and 
a  stranger,  it  was  gravely  adjudged,  1st,  that  the  claimant  should  have 
the  land  as  having  the  better  title  to  it ;  and  2d,  that  the  tenant  should 
have  judgment  against  his  vouchee  to  recover  lands  of  equal  value  on 
the  ground  that  he  was  warrantor,  and  thus,  theoretically,  nobody  was 
harmed.  If  the  issue  in  tail  or  the  reversioner,  or  remainder-man, 
lost  that  specific  estate,  he  was  to  have  one  of  equal  value  through 
this  judgment  in  favor  of  the  tenant  in  tail,  whereas  in  fact  the 
vouchee  was  an  irresponsible  man,  and  it  was  never  expected  that  he 
was  anything  more  than  a  dummy  in  the  game.  The  result  of  this, 
which  Blackstone  calls  *a  kind  of  pia  fraus  to  elude  the  statute  De 
Donis,'  was  that  the  lands  passed  from  the  tenant  in  tail  to  the  claimant 
in  fee  simple,  free  from  the  claims  of  reversioner,  remainder-man,  or 


Ch.  5)  •  ESTATES  CREATED  5G3 

issue  in  tail,  and  he  either  paid  the  tenant  for  it  as  a  purchaser,  or 
conveyed  it  back  to  him  again  in  fee-simple." 

The  precedent  of  fictitious  suits  as  means  of  acquiring  or  conveying 
property  was  found  in  the  Roman  law,  and  the  practice  of  resorting  to 
them  was  supposedly  introduced  in  England  by  the  clergy  to  evade  the 
statute  of  mortmain.  Spence's  Equitable  Jurisdiction  of  the  Court  of 
Chancery,  p.  141,  note.  The  solemn  piece  of  jugglery  already  described 
later  became  more  involved. 

"Complex,  however,  as  the  proceedings  above  related  may  appear, 
the  ordinary  forms  of  a  common  recovery  in  later  times  were  more 
complicated  still ;  for  it  was  found  expedient  not  to  bring  the  collusive 
action  against  the  tenant  in  tail  himself,  but  that  he  should- come  in  as 
one  vouched  to  warranty.  The  lands  were,  therefore,  in  the  first  place 
conveyed,  by  a  deed  called  the  recovery  deed,  to  a  person  against  whom 
the  action  was  to  be  brought,  and  who  was  called  the  tenant  to  the 
praecipe  or  writ.  The  proceedings  then  took  place  in  the  Court  of 
Common  Pleas,  which  had  an  exclusive  jurisdiction  in  all  real  actions. 
A  regular  writ  was  issued  against  the  tenant  to  the  prrecipe  by  another 
person,  called  the  demandant;  the  tenant  in  tail  was  then  vouched  to 
warranty  by  the  tenant  to  the  praecipe.  The  tenant  in  tail,  on  being 
vouched,  then  vouched  to  warranty  in  the  same  way  the  crier  of  the 
Court,  who  was  called  the  common  vouchee.  The  demandant  then 
craved  leave  to  imparl  or  confer  with  the  last  vouchee  in  private,  which 
was  granted  by  the  Court;  and  the  vouchee,  having  thus  got  out  of 
Court,  did  not  return;  in  consequence  of  which  judgment  Vvas  given 
in  the  manner  before  mentioned,  on  which  a  regular  writ  vyas  directed 
to  the  sheriff  to  put  the  demandant  into  possession."  Williams  on 
Real  Property  (17th  Ed.)  p.  108. 

In  all  cases  there  was  an  agreement  or  understanding  that  the  person 
who  acquired  an  estate  tail  by  means  of  a  common  recovery  should 
pay  for  it,  or  convey  it  to  the  original  tenant  in  tail  in  fee  simple,  or 
dispose  of  it  as  such  tenant  might  direct.  The  result  was  that  estates 
tail  and  all  remainders  over  and  the  reversion  were  effectually  barred 
As  Blackstone  said,  by  long  acquiescence  and  use,  these  recoveries  came 
to  be  looked  upon  as  a  legal  mode  of  conveyance  by  which  a  tenant  in 
tail  might  dispose  of  his  land.  2  Com.  *117.  This  rightof  convey- 
ance  became,  in  contemplation  of  the  law,  an  inherent  and j^nseparable~ 
incident  of  an  estate  tail  and  covenants  and  conditions  attempting  to 
^e^train  the  exercise  of  the  tight  were  held  to  be  void.  1  Washburn 
on  Real  Property  (6th  Ed.)  §  188.  The  same  purpose  was  accomplished 
by  the  equally  fictitious  proceeding  of  fine. 

In  volume  4  of  his  Commentaries  (14th  Ed.)  p.  *14,  Chancellor  Kent 
said : 

"Estates  tail  were  introduced  into  this  country  with  the  other  parts 
of  the  English  jurisprudence,  and  they  subsisted  in  full  force  before 
our  Revolution,  subject  equally  to  the  power  of  being  barred  by  a  fine 
or  common  recovery." 


564  DERIVATIVE  TITLES  (Part  2 

These  estates  are  now  very  generally  changed  by  legislation  into  fee 
simples,  or  reversionary  estates  in  fee  simple,  or  may  be  converted  intq_ 
fee  simples  by  ordinary  conve3^ance,     2  Bl.  Com.  119  (Cooky's  note). 
In  the  pages  following  the  above  quotation  from  Kent  much  of  this 
legislation  is  referred  to. 

The  territorial  legislature  of  1855  passed  an  elaborate  act  relating 
to  conveyances.  Stat,  of  Kan.  Terr,  1855,  ch.  26.  Section  5  of  this 
act  reads  as  follows : 

"That  from  and  after  the  passage  of  this  act,  where  any  conveyance 
or  devise  shall  be  made  whereby  the  grantee  or  devisee  shall  become 
seized  in  law  or  equity  of  such  estate,  in  any  lands  or  tenements,  as 
under  the  statute  of  the  tliirteenth  of  Edward  the  first,  (called  the  stat- 
ute of  entails)  would  have  been  held  an  estate  in  fee  tail,  every  such 
conveyance  or  devise  shall  vest  an  estate  for  life  only  in  such  grantee 
or  devisee,  who  shall  possess  and  have  the  same  power  over  and  right 
in  such  premises,  and  no  other,  as  a  tenant  for  life  thereof  would  have 
by  law ;  and  upon  the  death  of  such  grantee  or  devisee,  the  said  lands 
and  tenements  shall  go  and  be  vested  in  the  children  of  such  grantee 
or  devisee,  equally  to  be  divided  between  them  as  tenants  in  common, 
in  fee ;  and  if  there  be  only  one  child,  then  to  that  one,  in  fee ;  and  if 
any  child  be  dead,  the  part  which  would  have  come  to  him  or  her  shall 
go  to  his  or  her  issue ;  and  if  there  be  no  issue,  then  to  his  or  her  heirs." 

This,  of  course,  constituted  a  deliberate  legislative  modification  of 
the  common  law  relating  to  estates  tail.  In  1859  the  territorial  legis- 
lature completely  revised  the  act  of  1855  relating  to  conveyances,  mak- 
ing radical  changes  in  its  substance  and  content.  Laws  1859,  ch.  30. 
The  subject  matter  of  the  section  quoted  was  entirely  omitted  and 
nothing  whatever  was  substituted  for  it  either  in  tlie  revision  or  in  any 
other  statute.  The  result  was  that  section  5  was  repealed  by  implica- 
tion, and  since  the  legislature  had  its  attention  specially  directed  to  es- 
tates tail  by  that  section  the  purpose  evidently  was  to  restore  the  com- 
mon law  on  the  subject.  This  intention  is  made  more  apparent  by 
the  passage  of  the  following  act  at  the  same  session : 

"The  common  law  of  England  and  all  statutes  and  acts  of  Parlia- 
ment in  aid  thereof,  made  prior  to  tlie  fourth  year  of  James  the  First, 
and  which  are  of  a  general  nature,  not  local  to  that  kingdom  and  not 
repugnant  to  or  inconsistent  with  the  constitution  of  the  United  States 
and  the  act  entitled  'An  act  to  organize  the  Territory  of  Nebraska  and 
Kansas,'  or  any  statute  law  which  may  from  time  to  time  be  made 
or  passed  by  this  or  any  subsequent  Legislative  Assembly  of  the  Ter- 
ritory of  Kansas,  shall  be  the  rule  of  action  and  decision  in  this  Ter- 
ritory, any  law,  custom  or  usage  to  the  contrary  notwithstanding." 
Laws  1859,  ch.  121,  §  1. 

The  constitution  adopted  in  July,  1859,  under  which  the  state  was 
admitted  to  the  Union  on  January  31,  1861,  contains  nothing  which 
bears  upon  the  subject  either  directly  or  remotely,  and  the  legislature 
has  not  since  dealt  with  it.    Nothing  is  to  be  found  in  the  acts  relatins: 


Ch.  5)  ESTATES   CREATED  565 

to  conveyances,  descents  and  distributions,  or  wills,  incompatible  with 
the  existence  of  such  estates,  and  in  their  unfettered  form  such  estates 
are  not  out  of  harmony  with  the  conditions  and  wants  of  tlie  people  of 
Kansas.  On  the  other  hand,  they  exactly  meet  the  requirements  of  tes- 
tators in  the  situation  of  John  Ewing.  He  desired  to  give  his  daugh- 
ter an  estate  for  life,  in  order  to  secure  to  her  a  home  and  some  meas- 
ure of  comfort  and  welfare  while  she  lived.  After  that  he  desired  that 
the  remainder  should  go  to  her  children  in  fee.  But  he  did  not  desire 
that  his_^9n-in-la_w  should  take  the  whole  gift  should  she  die  childless,.to 
be  enjoyed  by  him  and  perhaps  a  strange  second  wife  and  their  chi]- 
dren.  The  court  knows  of  no  reason  in  law,  morals,  or  public  policy 
why  these  sentiments  should  not  be  respected,  and  they  were  clearly 
and  fully  expressed  by  tlie  language  of  the  will,  interpreted  by  the 
common  law.  The  overweening  propensity  to  perpetuate  family  name 
and  family  property  which  made  estates  tail  so  obnoxious  in  the  middle 
ages  is  fairly  curbed  by  the  right  of  a  tenant  in  tail  to  convert  his  ten- 
ancy into  a  fee  simple,  and  is  not  a  menace  to  the  general  welfare  of 
the  people  of  this  state ;  and  it  will  be  remembered  that  this  right  be- 
came one  of  the  characteristics  of  the  estate.  Fines  and  recoveries, 
however,  are  not  adapted  to  any  of  our  needs,  are  inconsistent  with  the 
code  of  civil  procedure  and  consequently  can  not  be  resorted  to,  as  por- 
tions of  the  common  law,  in  aid  of  the  general  statutes  of  this  state. 
Gen.  Stat.  1909,  §  9850.  The  effect  of  these  indirect,  fictitious  and 
operose  proceedings  was  merely  that  of  a  deed  of  record,  and  the  same 
end  may  now  be  accomplished  by  an  ordinary  conveyance.  The  fiction 
and  the  form  alone  are  obsolete.  The  substance  of  the  proceeding — a 
conveyance — and  the  essential  character  of  the  estate  tail — the  right  to 
convert  the  estate  into  a  fee  simple  by  a  conveyance — are  preserved. 
If,  therefore,  Mary  A.  Nesbitt  had  chosen,  in  her  lifetime,  to  make_a 
conveyance  of  the  land  devised  to  her,  she  would  thereby  have  barred 
herself,  her  issue,  born  and  unborn,  and  her  father's  reversion. 

While  the  mere  possibility  of  a  reverter  such  as  attended  conditional 
gifts  under  the  ancient  common  law  is  not  a  subject  of  disposal  by  will, 
reversions  in  fee  under  the  statute  de  donis  may  be  devised.  The  re- 
sult is  that  Mary  A.  Nesbitt  was  given  by  the  will  an  estate  tail  in  the 
land  in  controversy.  She  also  took  by  virtue  of  the  residuary  clause  of 
the  will,  one-fifth  of  the  reversion  in  fee  expectant  upon  her  death 
without  issue.  Upon_  her__death  this  interest  passed  to  her  husband, 
the, defend  ant.  ■ 

The  judgment  of  the  district  court  is  affirmed.' 

6  Estates  in  fee  tail  are  recognized  in  Delaware  as  still  subsisting.  In  Haz- 
zard  ^.  Hazzard  (Del.  Super.)  94  Atl.  905  (1915),  it  was  held  that  upon  a  levy 
and  sale  under  an  execution  against  a  tenant  in  tail  the  purchaser  acquired  a 
fee  simple ;  the  statute  (Rev.  Code  Del.  1915,  §  4365)  providing  that  such  pur- 
chaser should  acquii'e  such  estate  as  the  judgment  debtor  might  convey.  By 
section  3235,  Rev.  Code  1915,  it  is  provided  that  a  person  having  an  estate  tail 
shall  have  power  to  alien  the  lands  in  fee  simple  or  for  other  less  estate  by 
deed.     See,  however,  the  same  case  reversed  in  97  Atl.  233  (1916). 


5CG  •  DERIVATIVE  TITLES  (Tart  2 


DUNGAN  V.  KLINE. 

(Supreme  Court  of  Ohio,  1010.    81  Oliio  St.  371,  90  N.  E.  93S.) 

On  October  27,  1906.  Etta  Kline  commenced  an  action  in  tlie  court 
of  common  pleas  of  Pickaway  county  against  the  plaintiff  in  error, 
Harriet  Dungan  and  others,  asking  for  the  partition  ot  certain  real 
estate  in  her  petition  described.  Thereafter,  to-\vit,  on  November  22, 
1906,  Adolph  G.  Wilson  also  brought  suit  in  said  court  of  common 
pleas  against  said  Harriet  Dungan  and  others,  asking  partition  of  the 
same  lands.  On  motion  these  cases  were  consolidated  and  tried  as  one 
case.  The  lands  of  which  partition  was  asked  consisted  of  three  tracts, 
two  of  which,  by  the  will  of  Titus  Dungan,  had  been  devised  to  "Eliza- 
beth Wilson  and  the  heirs  of  her  body,"  and  the  other  tract  had  been 
devised  to  said  "Elizabeth  Wilson  and  the  heirs  of  her  body"  by  one 
]\Iary  Ann  Kirkendall.  The  devisors  Titus  Dungan  and  Mary  Ann 
Kirkendall  both  died  prior  to  June  18,  1883,  and  the  will  of  each  had 
been  duly  admitted  to  probate  prior  to  that  time.  The  devisee  Eliza- 
beth Wilson  had  seven  children,  among  whom  were  two  sons,  William 
T.  and  George  H.  Wilson.  William  T.  Wilson  died  on  January  16, 
1887,  his  mother  Elizabeth  Wilson  surviving  him.  She  died  October  27, 
1906.  On  July  4,  1878,  during  the  lifetime  of  his  mother,  William  T. 
Wilson  deeded  to  one  George  Dungan  an  undivided  one-seventh  inter- 
est in  the  premises  which  had  been  devised  to  Elizabeth  Wilson  and 
the  heirs  of  her  body,  and  thereafter  said  George  Dungan  deeded  the 
same  to  the  plaintiff  in  error,  Harriet  Dungan.  On  June  18,  1883, 
George  H.  Wilson,  his  mother  being  then  in  full  life,  also  deeded  an 
undivided  one-seventh  interest  in  said  lands  to  George  Dungan,  which 
interest  was  subsequently  deeded  by  said  George  Dungan  to  one  John 
Schleyer  and  by  the  latter  to  Harriet  Dungan,  the  plaintiff  in  error. 
George  H.  Wilson  died  in  October,  1896,  ten  years  prior  to  the  death 
of  his  mother  Elizabeth  Wilson.  The  deeds  of  William  T.  and  George 
H.  Wilson,  although  containing  no  covenants  of  general  warranty,  con- 
tained recitals  that  would  perhaps  estop  each  of  them,  if  living,  from 
asserting  title  to  the  property  therein  described. 

The  controversy  in  this  case  is  between  the  children  of  William  JT. 
and  George  H.  Wilson  on  the  one  side,  and  Harriet  Dungan  the  plajn- 
tiff  in  error  on  the  other  side.  The  children  of  William  T.  and 
George  H.  Wilson  claim  to  be  the  owners  of,  and  entitled  to  such  in- 
terest in  the  real  estate  to  be  partitioned,  as  would  have  descended 
to  their  fathers  WilHam  T.  and  George  H.  Wilson  respectively,  if  they 
had  survived  their  mother  Elizabeth  Wilson,  the  first  donee  in  tail.- 
Harriet  Dungan,  plaintiff'  in  error,  claims  title  to  the  same  premises 
under  arid  by  virtue  of  the  alleged  conveyances  made  as  aforesaid  by 
said  William  T.  and  George  H.  Wilson  in  their  lifetime,  and  she  fur- 
ther contends  that  the  children  of  the  said  William  T.  and  George  .H. 
Wilson,  because  of  the  recitals  in  said  conveyances,  are  now  estopped 
from  claiming  any  interest  in  or  title  to  the  premises  sought  to  be  par- 


Ch.  5)  ESTATES  CREATED  5G7 

titioned.  In  both  the  court  of  common  pleas  and  the  circuit  court — 
to  which  latter  court  the  case  was  taken  on  appeal — this  claim  of  Har- 
riet Dungan  was  determined  against  her.  She  now  prosecutes  error 
to  this  court  asking  a  reversal  of  the  judgment  of  the  circuit  court. 

Crew,  J.^  If  the  estate  tail  devised  to  Elizabeth  Wilson  was  not 
alienable  by  tlie  issue  in  tail  during  her  life,  subject  to  her  tenancy 
therein,  then  the  grants  made  by  William  T.  Wilson  and  George  H. 
Wilson,  who  both  died  before  their  mother,  were  wholly  void  and  no 
estoppel  thereunder  can  be  invoked  against  their  children.  Therefore 
the  decision  of  this  case,  upon  the  facts  as  presented  by  the  record 
herein,  depends  primarily  upon  whether  or  not  William  T.  and  George 
H.  Wilson  during  the  lifetime  of  their  mother,  wei"e  severally  seized 
of  a  fee  simple  estate  in  the' premises  which  they  respectively  assumed 
to  convey  to  George  Dungan.  That  under  the  wills  of  Titus  Dungan 
and  Mary  Ann  Kirkendall,  Elizabeth  Wilson,  as  devisee,  took  an  es- 
tate tail  in  the  premises  in  controversy,  is  conceded,  and  the  contention 
of  Harriet  JDungan,  plaintiff  in  error,  is,  that  under  the  devises  therein  ■  ■ 

madejo, Elizabeth  Wilson  and  the  heirs  of  her  body,  that  William  T. 
and  George  H.  Wilson  as  her  cliildren,  upon  the  death  of  said  testa- 
tors,  each  immediately,  by  force  of  the  provisions  of  Section  4200,  Re^ 
vised  Statutes,  became  entitled  to  and  vested  with  an  absolute  estate 
in^fee  simple  to  a  one-seventh  part  of  the  premises  so  devised  to  their 
mother,  Elizabeth  Wilson,  as  first  donee  in  tail.  Onjhe  other  hand,  it  ■  ,'^,  C^^ 
is  claimed  by  the  children  of  William  T.  and  George  H.  Wilson,  all  of  -w/" 

whom  are  defendants  in  error  herein,  that  their  fathers,  during  the  life- 
time  of  Elizabeth  Wilson,  had  no  estate  or  interest  in  said  premises 
which  they  of  right  could  alienate  or  convey,  that  until  the  death  of 
said  Elizabeth  Wilson,  the  interest  of  William  T.  and  George  H.  Wil- 
son in  said  premises  was  that  of  a  mere  possibility  or  expectancy  which 
could  ripen  into  title  and  become  a  vested  estate  or  interest,  only  in  the 
event  that  they  survived  their  mother,  Elizabeth  Wilson,  the  first  donee 
in  tail.  In  both  the  court  of  common  pleas  and  in  the  circuit  court,  the 
contention  of  Harriet  Dungan  was  held  to  be  erroneous  and  was  de- 
termined against  her,  and  in  this  we  think  therewas  no  error. 

Section  4200,  Revised  Statutes,  provides  as  follows :  "No  estate  in 
fee  simple,  fee  tail,  or  any  lesser  estate,  in  lands  or  tenements,  lying 
within  this  state,  shall  be  given  or  granted,  by  deed  or  will,  to  any  per- 
son or  persons  but  such  as  are  in  being,  or  to  the  immediate  issue  or 
descendants  of  such  as  are  in  being  at  the  time  of  making  such  deed  or 
will ;  and  all  estates  given  in  tail  shall  be  and  remain  an  absolute  estate., 
in Jee  simple  to  the  issue  ^f  the  first  donee  in  tail."  Counsel  for  plain- 
tiff in  error,  in  discussing  the  effect  of  this  statute,  say  in  their  brief : 
"The  first  part  of  the  section,  preceding  the  semi-colon,  permits  the 
granting  of  a  limited  estate  tail  and  it  forbids  the  granting  of  the  same 
to  persons  who  are  in  fact  more  remote  than  the  immediate  issue  of 
persons  in  being  at  the  time  said  grant  is  made."    This  claim,  ignoring 

7  Part  of  the  opinion  is  omitted. 


568.  DERIVATIVE  TITLES  (^^art  2 

as  it  does  the  word  "descendants"  found  in  the  statute,  is  in  part  at 
kast  clearly  erroneous.  It  will  be  observed  that  by  the  language  of  the 
first  clause  of  this  section  the  entailment  by  deed  or  will,  is  not  re- 
stricted to  persons  in  being,  or  to  the  immediate  issue  of  such  as  are  in 
being,  but  the  limitation  is,  to  persons  in  being,  "or  to  the  immediate 
issue  or  descendants  of  such  as  are  in  being  at  the  time  of  making  such 
deed  or  will."     *     *     * 

That,  during  the  life  of  Elizabeth  Wilson,  first  donee  in  tail,  her  chil- 
dren William  T.  and  George  H.  Wilson  had  no  estate  or  interest_m 
the  premises  devised  to  her  which  they  of  right  could  alien  or  convey 
while  not  heretofore  directly  decided  by  this  court  has,  we  think,  by 
necessary  implication,  been  so  determined  in  several  cases.  In  Pollock 
V.  Speidel,  17  Ohio  St.  448,  in  discussing  the  scope  and  effect  of  the 
act  of  1811  (now  section  4200,  Revised  Statutes),  Scott,  J.,  says :  "The 
statute  recognizes  the  first  donee  in  tail  as  holding  an  estate  for  life 
only,  as  tenant  in  tail ;  and  does  not  convert  the  estate  into  a  fee  simple 
till  it  reaches  the  hands  of  his  issue."  While  it  would  seem  to  be,  and 
was,  incorrect  to  speak  of  the  first  donee  in  tail  as  holding  an  estate  for 
life,  as  tenant  in  tail,  this  apparent  inaccuracy  of  statement  is  suffi- 
ciently, and  we  think  correctly  explained  in  Harkness  v.  Corning,  24 
Ohio  St.  428,  where  the  court  say:  "A  somewhat  similar  expression 
is  used  by  the  learned  judge  delivering  the  opinion  of  this  court  in  Pol- 
lock V.  Speidel,  17  Ohio  St.  447.  The  controversy  in  that  case  was  be- 
tween the  issue  of  the  donee  and  the  defendant,  claiming  under  a  con- 
veyance from  the  donee,  and  the  question  was  as  to  the  quantity  of  in- 
terest conveyed.  The  judge  said  the  'statute  recognizes  the  first  donee 
in  tail  as  holding  an  estate  for  life  only,  as  tenant  in  tail.'  The  idea  in- 
tended to  be  expressed  was  that  the  donee,  holding  only  as  tenant  in 
tail,  could  not  convey  an  estate  that  would  endure  beyond  his  own  fife. 
To  give  to  the  expression  the  meaning  claimed  by  plaintiff's  counsel, 
that  the  donee  took  a  mere  life  estate,  would  render  the  opinion  not 
only  inconsistent  with  itself  but  with  the  fourth  proposition  of  the  syl- 
labus." This  case  of  Harkness  v.  Corning,  supra,  is  also  decisive  of  the 
proposition,  that  the  statute  does  not  become  operative  until  the  estate 
passes  by  the  first  donee  in  tail  and  reaches  the  issue  of  such  donee, 
when,  as  said  in  the  opinion  (24  Ohio  St.  at  page  426),  on  the  determina- 
tion of  the  interest  of  such  donee  and  of  such  rights  as  the  law  annexes 
to  his  interest  while  held  by  him,  the  statute  then  enlarges  the  estate  tail 
in  the  hands  of  such  issue  into  an  absolute  estate  in  fee  simple. 

When  the  case  of  Pollock  v.  Speidel,  supra,  was  a  second  time  before 
this  court,  27  Ohio  St.  86,  the  court,  in  considering  and  discussing  the 
eft'ect  of  the  last  paragraph  of  the  statute  which  reads,  "and  all  estates 
given  in  tail  shall  be  and  remain  an  absolute  estate  in  fee  simple  to  the 
issue  of  the  first  donee  in  tail,"  say  that  the  issue  of  a  tenant  in  tail 
"has  no  legal  rights  in  the  premises  during  the  tenant's  life.  The  issue 
takes,  if  at  all,  by  descent  as  heir  of  the  body,  and  the  maxim  is  'nemo 
est  hseres  viventis.'  "     The  action  was  one  in  ejectment,   and   was 


Ch.  5)  ESTATES  CREATED  569 

brought  by  the  children  of  one  James  Pollock,  who  was  the  son  of  John 
Pollock,  Jr.,  first  donee  in  tail,  against  the  defendant  to  recover  posses- 
sion of  certain  real  estate  of  which  they  claimed  to  be  seized  in  fee 
simple  as  heirs  of  said  James  Pollock.  The  defendant  denied  the  title 
of  plaintiffs  and  alleged  title  in  himself  under  a  conveyance  from  said 
James  Pollock  by  deed  of  general  warranty  executed  June  30,  1831. 
While  it  does  not  positively  and  affirmatively  appear  at  what  time  John 
Pollock,  Jr.,  the  first  donee  in  tail  died,  and  the  court  in  the  opinion 
so  state,  yet  it  does  appear  from  the  agreed  statement  of  facts  therein : 
"III.  That  John  Pollock,  Jr.,  left  some  five  children  besides  James 
Pollock,  the  grantee  in  the  deed  dated  June  30,  1831."  We  therefore 
conclude  that  the  fair  and  reasonable  inference  is,  and  that  the  fact 
was,  that  John  Pollock,  Jr.,  the  father  of  James,  died  before  he  did, 
and  as,  upon  the  death  of  his  father,  James  as  issue  in  tail  would  there- 
upon take,  by  force  of  the  statute  an  absolute  estate  in  fee  simple,  with 
full  power  of  alienation,  he  would  of  course,  as  would  also  his  heirs, 
be  estopped  by  his  deed  of  June  30,  1831,  which  was  a  deed  of  general 
warranty,  and  this  would  be  so,  as  said  by  the  court  in  that  case,  even 
though  John  Pollock  the  first  donee  in  tail  was  living  at  the  time  of  its 
execution.  Upon  no  other  theory,  than  that  James  survived  his  father, 
can  the  decision  in  this  case  be  reconciled  with  other  decisions  of  this 
court,  or  be  supported  and  upheld. 

Our  statute  of  entailments.  Section  4200,  substantially  in  its  present 
form,  was  copied  from  the  statute  of  Connecticut,  and  the  precise  ques- 
tion we  are  now  considering  was  decided  by  the  supreme  court  of  that 
state  in  Dart  v.  Dart,  7  Conn.  250,  where  it  is  said  by  Peters,  J. :  "2. 
What  estate  passed  from  the  plaintiff,  by  his  deed  to  the  releasees? 
By  the  common  law,  a  release  is  a  secondary  conveyance,  and  is  a  dis- 
charge of  a  man's  right  in  land  or  tenements  to  another,  who  hath  some 
former  estate  in  possession.  Shep.  Touch.  318,  2  Bl.  Com.,  328.  But 
in  this  state,  a  release  is  considered  as  a  primary  conveyance,  and  pass- 
es all  the  right  of  the  releasor  to  the  releasee,  provided  no  other  person 
be  in  possession  adversely ;  and  operates  as  a  conveyance  without  war- 
ranty. 1  Sw.  Dig.  133.  But  if  he  have  no  right,  nothing  passes,  not 
even  a  chose  in  action.  What  esta];£,..,tfa£n^.  liad  th e  issu e  o i  the  fir.st , 
donee  in  tail,  during  his  life?  My. answer  is,  none.  The  plaintiff  could.,, 
therefore,  convey  none.  Such  issue  is  only  an  heir  apparent  or  pre- 
sumptive.  His  title  is  the  bare  possibility,  or  mere  chance,  of  becoming 
eventually  the  heir  in  tail;  for  the  maxim  is,  'nemo  est  haeres  viventis.' 
And  it  is  a  well  settled  rule,  that  a  rnere  £ossibility  cari  not  be  released 
_orconyeyed ;  and  the  reason  thereof  is,  that  a  release  supposes  a  right 
IrTBemg;     Shep.  Touch.  319;  Bac.  Abr.  tit.  Release,  H." 

It  follows  from  the  foregoing,  we  think,  that  the  judgment  of  the  cir- 
cuit court  in  the  present  case  was  right  and  should  be  affirmed.  Judg- 
ment affirmed.^  /7  ^^/f-       7^ <?  , 

8  In  many  states  statutes  relative  to  estates  tail  have  been  passed.  See  1 
Stimson,  Am.  St.  Law,  §  1313;    Brewster  on  Conveyancing,  §  143^     In  Mich- 


570  DEEivATiVE  TITLES  (Part  2 

SECTION  3.— LIFE  ESTATES 
I.  Conve;ntional 


LITTLETON'S  TENURES. 

Tenant  for  term  of  life  is,  where  a  man  letteth  lands  or  tenements 
to  another  for  term  of  the  life  of  the  lessee,,or  for  term  of  tlie^Jife_of 
another  man.  In^  this  case  the  lessee  is  tenant  for  ternL.oi  life..  But  by- 
common  speech  he  which  holdeth  for  term  of  his  own  life,  is  called  ten- 
ant for  term  of  his  life,  and  he  which  holdeth  for  term  of  another's 
life,  is  called  tenant  for  teim  of  another  man's  life  (tenant  pur  terme 
d'autre  vie.) 

Section  56. 


COKE  UPON  LITTLETON. 

"Or  for  term  of  the  life  of  another  man."  Now  it  is  to  be  under- 
stood, that  if  the  lessee  in  that  case  dieth  living  cesty  que  vie  (that  is  he 
for  whose  life  the  lease  was  made),  he  that  first  entereth  shall  hold  the 
land  during  that  other  man's  life,  and  he  that  so  entereth  is  within 
Littleton's  words,  viz.  tenant  pur  autre  vie,  and  it  shall  be  punished 
for  waste  as  tenant  pur  auter  vie,  and  subject  to  the  payment  of  the 
rent  reserved,  and  is  in  law  called  an  occupant,  because  his  title  is  by  his 
first  occupation.®  And  so  if  tenant  for  his  own  life  grant  over  his 
estate  to  another,  if  the  grantee  dieth  there  shall  be  an  occupant.  In 
like  manner  it  is  of  an  estate  created  by  law;  for  if  tenant  by  the  cur- 
tesy or  tenant  in  dower  grant  over  his  or  her  estate,  and  the  grantee 
dieth,  there  shall  be  an  occupant.  But  against  the  king  there  shall  be 
no  occupant,  because  nullum  tempus  occurrit  regi.  And  therefore  no 
man  shall  gain  the  king's  land  by  priority  of  entry.  There  can  be  no 
occupant  of  anything  that  lieth  in  grant,  and  that  cannot  pass  without 
deed,  because  every  occupant  must  claim  by  a  que  estate  and  aver  the 
life  of  cesty  que  vie.  It  were  good  to  prevent  the  uncertainty  of  the 
estate  of  the  occupant  to  add  tliese  words  (to  have  and  to  hold  to  him 

igan  the  statute  is  as  follo\rs:  "All  estates  tail  are  abolished,  and  every  estate 
'Uhic'h  would  be  adjiidfied  a  fee  tail,  ac-cording  to  the  laws  of  the  territory 
of  Michi^^an,  as  it  existed  before  the  second  day  of  March,  one  thousand  eight 
hundred  and  twenty-one,  shall  for  all  i>un'f^«^s  be  adjudtred  a  fee  simple;  and 
if  no  valid  remainder  he  limited  thereon,  tshall  be  a  fee  simjile  alisohilc."  IIow- 
eirs  Ann.  .'^t.  1912,  §  10(525.  There  are  many  states  in  which  the  statutes  are 
substantially  as  above,  omitting  the  italicized  portion;  tlie  part  in  italics, 
though  not  so  conimon,  is  found  in  several  statutes. 

»  See  1  Stimson's  Am.  St.  Law,  §  1335;  Howell's  Ann.  Mich.  St.  1912,  | 
10628 ;   St.  7  Will.  IV  &  1  Vict.  c.  26,  ss.  3,  6 ;    St  60  &  61  \'ict.  c.  65,  part  1. 


Ch.  5)  ESTATES  CREATED  571 

and  his  heirs  during  the  life  of  cesty  que  vie)  and  this  shall  prevent 
the  occupant,  and  yet  the  lessee  may  assign  it  to  whom  he  will ;  or  if  he 
hath  already  an  estate  for  another  man's  life  witholit  these  words,  then 
it  were  good  for  him  to  assign  his  estate  to  divers  men  and  tlieir  heirs 
during  the  life  of  cesty  que  vie.     *     *     * 

You  have  perceived,  that  our  author  divides  tenant  for  life  into  two 
branches,  viz.,  into  tenant  for  term  of  his  own  life,  and  into  tenant  for 
term  of  another  man's  life ;  to  this  may  be  added  a  third,  viz.,  into  an 
estate  both  for  term  of  his  own  life,  and  for  term  of  another  man's 
life. 

As  if  a  lease  may  be  made  to  A.  to  have  to  him  for  term  of  his  own 
life,  and  the  lives  of  B.  and  C.  for  the  lessee  in  this  case  hath  but  one 
freehold,  which  hath  this  limitation,  during  his  own  life,  and  during  the 
lives  of  two  others.     *     *     * 

If  a  man  grant  an  estate  to  a  woman  dum  sola  fuit,  or  durante 
viduitate,  or  quamdiu  se  bene  gesserit,  or  to  a  man  and  a  woman  during 
the  coverture,  or  as  long  as  the  grantee  dwell  in  such  a  house,  or  so 
long  as  he  pay  xl.  &c.  or  until  the  grantee  be  promoted  to  a  benefice, 
or  for  any  like  uncertain  time,  which  time,  as  Bracton  saith,  is  tempus 
indeterminatum :  in  all  these  cases,  if  it  be  of  lands  or  tenements,  the 
lessee  hath  in  judgment  of  law  an  estate  for  life  determinable,  if  livery 
be  made;  and  if  it  be  of  rents,  advowsons,  or  any  other  thing  that  lie 
in  grant,  he  hath  a  like  estate  for  life  by  the  delivery  of  the  deed,  and 
in  count  or  pleading  he  shall  allege  the  lease,  and  conclude,  that  by 
foric  thereof  he  was  seised  generally  for  term  of  his  life. 

If  a  man  make  lease  of  a  manor,  that  at  the  time  of  the  lease  made 
is  worth  £20.  per  annum,  to  another  until  £100.  be  paid,  in  this  case 
because  the  annual  profits  of  the  manor  are  uncertain,  he  hath  an  estate 
for  life,  if  livery  be  made  determinable  upon  the  levying  of  the  £100. 
But  if  a  man  grant  a  rent  of  £20.  per  annum  until  £100.  be  paid,  there 
he  hath  an  estate  for  five  years,  for  there  it  is  certain,  and  depends 
upon  no  uncertainty.  And  yet  in  some  cases  a  man  shall  have  an  un- 
certain interest  in  lands  or  tenements,  and  yet  neither  an  estate  for  life, 
for  years,  or  at  will.  As  if  a  man  by  his  will  in  writing,  devise  his 
lands  to  his  executors  for  payment  of  debts,  and  until  his  debts  be 
paid ;  in  this  case  the  executors  have  but  a  chattel,  and  an  uncertain  in- 
terest in  the  land  until  his  debts  be  paid;  for  if  they  should  have  it  for 
their  lives,  then  by  their  death  their  estate  should  cease,  and  the  debts 
unpaid ;  but  being  a  chattel,  it  shall  go  to  the  executors  of  executors 
for  the  payment  of  his  debts ;  and  so  note  a  diversity  between  a  devise 
and  a  conveyance  at  the  common  law  in  his  life  time.  And  tenant  by 
statute  merchant,  by  statute  staple,  and  by  elegit,  have  uncertain  inter- 
ests in  lands  or  tenements,  and  yet  they  have  but  chattels,  and  no  free- 
hold, whose  estates  are  created  by  divers  acts  of  parliament,  whereof 
more  shall  be  said  hereafter.  And  so  have  guardians  in  chivalry  which 
hold  over  for  single  or  double  value  uncertain  interests,  and  yet  b'Jt 
chattels. 


572  DERIVATIVE  TITLES  (Part  2 

If  one  grant  lands  or  tenements,  reversions,  remainders,  rents,  ad- 
vowsons,  commons,  or  the  like,  and  express  or  limit  no  estate,  the  lessee 
or  grantee  (due  cei*emonies  requisite  by  law  being  performed)  hath 
an  estate  for  life.  The  same  law  is  of  a  declaration  of  a  use.  A  man 
may  have  an  estate  for  term  of  life  determinable  at  will;  as  if  the  king 
doth  grant  an  office  to  one  at  will  and  grant  a  rent  to  him  for  the 
exercise  of  his  office  for  term  of  his  life,  this  is  determinable  upon  the 
determination  of  the  office. 

A.,  tenant  in  fee  simple,  makes  a  lease  of  lands  to  B.  to  have  and 
to  hold  to  B.  for  tefm  of  life,  without  mentioning  for  whose  life  it 
shall  be,  it  shall  be  deemed  for  term  of  the  life  of  the  lessee,  for  it  shall 
be  taken  most  strongly  against  the  lessor,  and  as  hath  been  said  an  es- 
tate for  a  man's  own  life  is  higher  than  for  the  life  of  another.  But 
if  tenant  in  tail  make  such  a  lease  without  expressing  for  whose  life, 
this  shall  be  taken  but  for  the  life  of  the  lessor,  for  two  reasons. 

First,  when  the  construction  of  any  act  is  left  to  the  law,  the  law 
which  abhorreth  injury  and  wrong,  will  never  so  construe  it  as  it  shall 
work  a  wrong;  and  in  this  case,  if  by  construction  it  should  be  for  the 
life  of  the  lessee,  then  should  the  estate  tail  be  discontinued,  and  a  new 
reversion  gained  by  wrong;  but  if  it  be  construed  for  the  life  of  the 
tenant  in  tail,  then  no  wrong  is  wrought.  And  it  is  a  general  rule,  that 
whensoever  the'  words  of  a  deed,  or  of  the  parties  without  deed,  may 
have  a  double  intendment,  and  the  one  standeth  with  law  and  right, 
and  the  other  is  wrongful  and  against  law,  the  intendment  that  stand- 
eth with  law  shall  be  taken. 

Secondly,  the  law  more  respecteth  a  lesser  estate  by  right,  than  a 
larger  estate  by  wrong;  as  if  tenant  for  life  in  remainder  disseise  ten- 
ant for  life,  now  he  hath  a  fee  simple,  but  if  tenant  for  life  die,  now  is 
his  wrongful  estate  in  fee  by  judgment  in  law  changed  to  a  rightful 
estate  for  life. 

Co.  Litt.  41b,  42  a,  b. 


LITTLETON'S  TENURES. 

And  it  is  to  be  understood,  that  there  is  feoffor  and  feoffee,  donor 
and  donee,  lessor  and  lessee.  Feoffor  is  properly  where  a  man  in- 
f eoffs  another  in  any  lands  or  tenements  in  fee  simple,  he  which 
maketh  the  enfeoft"ment  is  called  the  feoffor,  and  he  to  whom  the  feoff- 
ment is  made  is  called  the  feoffee.  And  the  donor  is  properly  where 
a  man  giveth  certain  lands  or  tenements  to  another  in  tail,  he  which 
maketh  tlie  gift  is  called  the  donor,  and  he  to  whom  tlie  gift  is  made  is 
called  the  donee.  And  the  lessor  is  properly  where  a  man  letteth  to 
another  lands  or  tenements  for  term  of  life,  or  for  term  of  years,  or  to 
hold  at  will,  he  which  maketh  the  lease  is  called  lessor,  and  he  to  whom 
the  lease  is  made  is  called  lessee.  And  every  one  which  hath  an  estate 
in  any  lands  or  tenements  for  term  of  his  own  or  another  man's  life. 


Ch.  5)  ESTATES  CREATED  57S 

is  called  tenant  of  freehold,  and  none  other  of  a  lesser  estate  can  have 
a  freehold;  but  they  of  a  greater  estate  have  a  freehold ;   for  he  in  fee 
sim2le  hath  a  freehold,  and  tenant  in  tail  hath  a  freehold,  &c. 
Section  57. 


ROSSE'S  CASE. 

(Court  of  Common  Pleas,  1600.     5  Co.  13.) 

Between  Peter  Rosse  and  Aldwick  in  an  ejectione  firmse,  which  be- 
gan Pasch.  Z1  Eliz.  Rot.  499,  the  case  was  such ;  a  lease  is  made  to  A. 
and  his  assigns,  habendum  to  him  during  his  life,  and  the  lives  of  B. 
and  C.  and  if  this  limitation  during  the  life  of  B.  and  C.  were  void  or 
not,  was  the  question.  And  it  was  adjudged,  that  the  limitation  was 
good;  for  where  it  was  objected  that  when  a  man  hath  two  estates  in 
him,  the  greater  shall  drown  the  less,  and  that  an  estate  for  his  own 
life  is  higher  than  for  the  life  of  another ;  and  therefore  an  estate  for 
his  own  life,  and  for  the  lives  of  others  cannot  stand  together.  To 
that  it  was  answered  and  resolved  that  in  the  case  at  Bar,  the  lessee 
had  but  one  estate,  which  hath  this  limitation,  scil.  during  his  life,  and 
the  lives  of  two  others,  and  he  hath  but  one  freehold,  and  therefore 
there^cannot  be  any  drowning  of  estates  in  the  case,  but  he  hath  an 
estate  of  freehold  to  continue  during  these  three  lives,  and  the  survivor 
of  them.** 


In  re  AMOS. 

CARRIER  V.  PRICE. 
(Court  of  Chancery.     [1891]  3  Ch.  159.) 

Originating  summons  by  the  executors  of  the  will  of  James  Amos, 
asking  for  the  determination  by  the  Court  of  questions  arising  in  the 
administration  of  his  estate. 

By  his  will,  dated  the  20th  of  October,  1888,  the  testator  appointed 
Robert  Carrier  and  J.  N.  Clark  to  be  his  executors.  And  he  gave, 
devised,  and  bequeathed  unto  Thomas  Price  a  leasehold  house  known 
as  27,  Bath  Terrace,  "the  conditions  to  be  as  follows :  that  the  prop- 
erty be  left  to  him  for  his  life  and  for  the  life  of  his  heir,  after  which 
it  becomes  the  property  of  the  Boiler  Makers  and  Iron  Ship  Builders 
Society."  There  followed  similar  gifts  in  precisely  similar  terms,  and 
subject  to  exactly  similar  conditions,  of  two  other  (freehold)  houses 
to  Henry  Poole  and  Thomas  Henry  Williams  respectively.  The  will 
continued  thus,  "that  each  of  the  above  keep  the  property  held  by  them 
in  good  repair,  and  shall  pay  to  the  trustees  the  sum  of  4s.  per  week, 

10  See  Brudnel's  Case,  5  Co.  9a  (1592). 


574  DERIVATIVE  TITLES  (Part  2 

until  the  whole  of  the  mortgage  be  paid.  And  tliat  the  further  sum  of 
£3  6s.  8d.  each  per  annum  be  paid  by  them  to  be  disposed  of  as  follows : 
viz.,  i5  per  annum  to  the  Boiler  Makers  Benevolent  Fund,  and  £5 
per  annum  to  the  executors.  Should  either  of  the  parties  refuse  or 
fail  to  comply  with  the  foregoing  conditions  they  shall  forfeit  all  rights 
to  the  property,  and  the  executors  shall  cause  the  same  to  be  handed 
over  to  the  Boiler  Makers  Society  forthwith." 

The  attesting  witnesses  to  the  will  were  the  two  executors. 

The  Defendants  to  the  sumrhons  were  the  three  devisees.  Price, 
Poole,  and  Williams;  the  Boiler  Makers  and  Iron  Ship  Builders  Soci- 
ety; and  the  Boiler  Makers  Benevolent  Fund;  and  Elizabeth  Reece, 
the  wife  of  J.  H.  Reece,  who  was  the  heiress-at-law  and  one  of  the 
next  of  kin  of  the  testator. 

The  Boiler  Makers  Society  was  registered  under  the  Trade  Union 
Acts,  1871  and  1876.  It  was  governed  by  an  executive  council.  The 
rules  provided  for  the  payment  by  members  of  monthly  contributions 
for  the  purpose  of  forming  a  fund  for  providing  weekly  pay  for  the 
members  during  sickness,  super-annuation  allowances,  and  other  pe- 
cuniary benefits.  There  were  also  provisions  relating  to  strikes  and 
trade  disputes.  Rule  39  provided  for  the  formation  of  a  Benevolent 
Fund  for  the  benefit  of  the  widows  and  children  of  members.  This 
fund  was  under  the  control  of  the  executive  council. 

The  summons  asked  that  a  construction  might  be  put  upon  the  de- 
vises, bequests,  and  directions  in  the  will  contained  of  and  concernirig;^^ 
the  three  houses  given  to  Price,  Poole,  and  Williams  respectively,  and 
that  the  effect  of  the  gift  of  £5  per  annum  to  the  Boiler  Makers  Benev- 
olent Fund  and  £5  per  annum  to  the  executors  might  be  determined. 

North,  J.^^  *  *  *  'j^|-,g  Qj^|y  remaining  question  is^  what  inter- 
est do  the  tenants  for  life  take?  I  confess  I  do  not  understand  what 
the  testator  had  in  his  mind ;  and  I  can  only  construe  his  language  as 
I  find  it.  In  my  opinion,  the  property  is  given  to  each  devisee  or 
legatee  for  a  limited  interest,  which  is  described  as  "for  his  life  and  for 
the  life  of  his  heir."  For  the  devisee's  own  life  the  gift  is  clearly  good. 
The  question  is,  whether  the  interest  which  he  takes  comes  to  an  end 
"upon  his  death,  the  interest  for  the  life  of  his  heir  being  too  vague  to 
be  recognized.  I  do  not  see  any  reason  in  point  of  law  which  prevents 
the  gift  from  being  good.  There  is  no  hiatus  of  any  kind ;  the  gift  to 
the  devisee  for  his  Hfe  would  necessarily  come  to  an  end  at  his  death. 
_But  at  the  very  moment  of  his  death  the  person  who  is  his  heir  is  as- 
certained, and  there  is  nothing  discontinuous  in  the  limitation  which 
prevents  it  from  being  good.  I  see  no  ground  for  saying  that  the  heir 
takes  beneficially.  In  my  opinion,  it  is  a  limitation  to  a  tenant  for  two 
lives,  the  lives  being  his  own  and  that  of  his  heir  in  each  case.  I  think 
that  is  the  meaning  of  the  testator's  words,  and  I  can  see  nothing  in 
law  to  prevent  their  taking  effect. 

11  Part  of  the  opinion  is  omitted. 


Ch.  5)  ESTATES  CREATED  575 

The  two  annual  payments  to  the  executors  and  to  the  Benevolent 
Fund  are  void.  The  payment  of  these  sums  is  a  condition  subsequent, 
and,  as  the  person  who  takes  the  land  cannot  legally  pay  them,  he  is 
not  liable  to  forfeit  his  land  by  reason  of  his  not  doing  that  which  he 
cannot  legally  do. 


THOMPSON  V.  BAXTER. 


j'X 


(Supreme  Court  of  Iklinnesota,  1909.     107  IVIinn.  122,  119  N.  W.  797,  21  L.  K.  A. 

[X.  S.J  575.) 

Brown,  J.     Proceedings  in  forcible  entry  and  unlawful  detainer, 
instituted  in  justice  court,  where  _defendant  had  judgment.     Plaintiff  , 
appealed  to  the  district  court,  where  a  like  result  followed.    From  the 
judgment  of  that  court  she  appealed  to  this  court. 

The  action  inyolves  the  right  to  the  possession  of  certain  residence^ 
property  in  the  city  of  Albert  Lea,  and  was  submitted  to  the  court 
helow  upon  the  pleadings  and  a  stipulation  of  facts.  It  appears  that 
jilaintjff  is  the  owner  of  the  premises;  that  she  acquired  title  thereto 
by  purchase  from  a  former  owner,  who  had  theretofore  entered  into 
a  contract  5y~ which  he  leasecTand  dernised  the  premises  to  defendant 
at  an  agreed  monthly  rent  of  twenty-two  dollars;  and  plaintiff's  title 
is  subject  to  all  rights  that  became  vested  in  defendant  thereby.  The 
lease,  after  reciting  the  rental  of  the  premises  and  other  usual  condi- 
tions, contained  upon  the  subject  of  the  term  of  the  tenancy,  the  fol- 
lowing stipulation :  "To  have  and  to  hold  the  above-rented  premises  ^ 
unto  the  said  party  of  the  second  part  (the  tenant)  his  heirs,  executors, 
administrators,  and  assigns,  for  and  during  the  full  term  of  while  he 
shall  wish  to  live  in  Albert  Lea,  from  and  after  the  first  day  of  Decem- 
ber, 1904."  The  only  question  involved  under  the  stipulation  is  the 
construction  of  this  provision  of  the  lease.  Defendant  has  at  all  times 
paid  the  rent  as  it  became  due;  but,  if  plaintiff  has  the  right  to  termi- 
nate the  tenancy  and  eject  him,  proper  notice  for  that  purpose  has  been 
given.  __Ap£ellant  contends  that  the  lease  created  either  a  tenancy  at 
will,  at  sufferance,  or  from  month  to  month,  and  that  plaintiff  could 
terminate  the  same  at  any  time  by  proper  notice.  The  trial  court  held^, 
in  harmony  with  defendant's  contentioUj,  that  the  contract  created  a 
li f e  est^ate  in  defendant,  terminable  only  at  his  death  or  removal  from 
Albert  Lea.    Appellant  assigns  this  conclusion  as  error. 

A  determination  of  the  question  presented  involves  a  construction 
of  the  lease  and  a  brief  examination  of  some  of  the  principles  of  law 
applicable  to  tenancies  at  will,  at  sufferance,  from  month  to  month,  and 
life  estates.  Deeds,  leases,  or  other  instruments  aft'ecting  the  title  to 
real  property  are  construed,  guided  by  the  law  appHcable  to  the  par- 
ticular subject,  precisely  as  other  contracts  are  construed,  and  eft'ect  , 
given  the,  intention  of  ..the_^arties.    Lawton  v.  Joesting,  96  Minn.  163, 


576  DERIVATIVE  TITLES  (Part  2 

104  N.  W.  830;  Whetstone  v.  Hunt,  78  Ark.  230,  93  S.  W.  979,  8  Ann. 
Cas.  443,  and  extended  note.  The  contract  before  us,  though  some- 
what £ecuhar  and  unusual  as  to  the  term  of  the  tenancy  intended  to  be 
created,  is  nevertheless  clear  and  free  from  ambiguity.  It  granted  the 
demised  premises  to  defendant  "while  he  shall  wish  to  live  in  Albert 
Lea."  The  legal  effect  of  this  language  is,  therefore,  the  only  question 
in  the  case. 

Tenancies  at  will  may  be  created  by  express  words,  or  they  may 
arise  by  implication  of  law.  Where  created  by  express  contract,  the 
writing  necessarily  so  indicates,  and  reserves  the  right  of  termination 
to  either  party,  as  where  the  lease  provides  that  the  tenant  shall  occupy 
the  premises  so  long  as  agreeable  to  both  parties.  Richardson  v.  Lang- 
ridge,  4  Taunt.  128;  Say  v.  Stoddard,  27  Ohio  St.  478.  ^uch  ten- 
ancies arise  by  implication  of  law  where  no  definite  time  is  stated  in 
the  contract,  or  where  the  tenant  enters  into  possession  under  an 
agreement  to  execute  a  contract  for  a  specific  term  and  he  subsequently 
refuses  to  do  so,  or  one  who  enters  under  a  void  lease,  or  where  he 
holds  over  pending  negotiations  for  a  new  lease.  The  chief  charac- 
teristics of  this  form  of  tenancy  are  (1)  uncertainty  respecting  the 
term,  and  (2)  the  right  of  either  party  to  terminate  it  by  proper  notice ; 
and  these  features  must  exist,  whether  the  tenancy  be  created  by  the 
express  language  of  the  contract  or  by  implication  of  law.  An  accu- 
rate definition  is  given  in  1  Wood,  Landlord  &  Tenant,  43,  in  the  fol- 
lowing language:  '_^A_tenant  at  will  is  one  who  enters  into  the  posses- 
sion of  the  lands  or  tenements  of  another,  lawfully,  but  for  no  definite 
term  or  purpose,  but  whose  possession  is  subject  to  termination  by 
the  landlord  at  any  time  he  sees  fit  to  put  an  end  to  it.  He  is  called 
a  tenant  at  will  'because  he  hath  no  certain  or  sure  estate,  for  the  les- 
sor may  put  him  out  at  what  time  it  pleaseth  him.' " 

A  tenancy  at  sufferance  arises  where  the  tenant  wrongfully  holds 
over  after  the  expiration  of  his  term,  differing  from  the  tenancy  at 
will,  where  the  possession  is  by  the  permission  of  the  landlord.  4 
Kent,  Com.  117;  Edwards  v.  Hale,  9  Allen  (Mass.)  462.  He  has  a 
naked  possession  without  right,  and,  independent  of  statute,  is  not  en- 
titled to  notice  to  quit.  1  Wood,  Landlord  &.  Tenant,  §  8.  It  also  arises 
where  a  mortgagor  holds  over  after  the  expiration  of  the  period  of 
redemption  on  foreclosure.  Stedman  v.  Gassett,  18  Vt.  346.  In  fact, 
this  relation  exists  in  all  cases  where  a  person  who  enters  lawfully  into 
the  possession  wrongfully  holds  possession  after  his  estate  or  right 
has  ended.  Kinsley  v.  Ames,  2  Mete.  (Mass.)  29;  Jackson  v.  McLeod, 
12  Johns.  (N.  Y.)  182;  2  Blackstone,  150;  1  Wood,  Landlord  &  Ten- 
ant, 7. 

A  tenancy  from  month  to  month  or  year  to  year  arises  where  no 
definite  time  is  agreed  upon  and  the  rent  is  fixed  at  so  much  per 
year  or  month,  as  the  case  may  be,  and  is  terminable  at  the  expiration 
of  any  period  for  which  rent  has  been  paid.  Finch  v.  Moore,  50 
Minn.  116,  52  N.  W.  384.    This  form  of  tenancy  can  never  exist  where 


Ch.  5)  ESTATES   CREATED  577 

the  lease  or  contract  prescribes  a  fixed  tinie.^  The  mere  fact  that  rent 
is  payable  monthly  does  not  alone  determine  the  character  of  the  ten- 
ancy. The  monthly  or  yearly  payments  and  an  intention  to  limit  the 
term  to  a  month  or  year  must  in  all  cases  concur  to  create  this  species 
of  tenancy. 

From  these  general  principles  of  the  law  of  tenancy  it  is  quite  clear 
that  the  lease  under  consideration  does  not  come  within  either  class 
mentioned.  Its  language  does  not  expressly  define  it  as  a  tenancy  at 
will,  and  no  such  relation  arises  by  implication,  for  the  reason  that  the 
term  is  not  indefinite,  within  the  meaning  of  the  law  on  this  subject,  nor 
is  the  right  to  terminate  the  lease  reserved  to  the  lessor.  Indefiniteness 
or  uncertainty  as  to  the  term  of  the  lease  is  illustrated  by  instances 
where  one  occupies  land  by  the  naked  permission  of  the  owner  (Hull 
V.  Wood,  14  Mees.  &  W.  681 ;  Williams  v.  Deriar,  31  Mo.  13;  Larned 
V.  Hudson,  60  N.  Y.  102),  or  a  person  who  holds  under  a  void  deed 
(Stamper  v.  Griffin,  20  Ga.  312,  65  Am.  Dec.  628;  Executors  v.  Hous- 
ton, 16  Ala.  Ill),  or  where  he  enters  under  an  agreement  for  a  lease 
not  yet  executed  (Emmons  v.  Scudder,  115  Mass.  367),  or  under  a 
lease  until  the  premises  are  sold  (Lea  v.  Hernandez,  10  Tex.  137;  Ela 
V.  Bankes,  Zl  Wis.  89),  and  under  various  circumstances  wiiere  no 
time  is  specifically  agreed  upon.  In  the  lease  under  consideration  the 
tenancy^is  limited  by  the  time  defendant  sliall  continue  to  dwell  in  Al- 
bejt^^ea,  and  this  limitation  takes  the  case  put  of  the  class  of  tenan- 
cies at  will.  It  is  equally  clear  that  a  tenancy  at  sufferance  was  not 
created  by  the  contract.  There  has  been  no  wrongful  or  unlawful 
holding  over  after  the  expiration  of  the  term.  Nor  does  tlie  rule  of 
tenancy  from  month  to  month  apply  for  the  reasons  already  pointed 
out. 

We  therefore  turn  to  tlie  question,  the  turning  point  in  the  court  be- 
low, whether  the  instrument  created  a  life  estate  in  defendant  within 
the  princTpIes'of  law  applicable  to  , that  branch  of  land  titles.  It  is 
tEoroughly  settled  that  a  life  estate  may  be  created  by  a  deed,  lease,  or 
devise,  either  witb  or  without  a  stipulation  for  the  payment  of  rent. 
This  class  of  tenancies  differs  in  many  essential  respects  from  tenancies 
at  will,  or  from  year  to  year,  or  at  sufferance;  the  principal  distinction 
being  that  the  former  confers  a  freehold  upon  tbe  tenant,  and  the  lat- 
ter a  mere  chattel  interest.  Tbe  lease  under  consideration  embodies  all 
the  essentials  of  a  life  tenancy.  .  It  contains  the  usual  words  of  in- 
heritance, necessary  at  common  law,  running  to  defendant,  "his  heirs, 
executors,  administrators,  and  assigns,"  and  grants  the  right  of  occu- 
pancy for  the  term  stated  therein. 

Life  estates  or  life  tenancies  are  clearly  defined  in  the  books,  and 
the  lease  here  involved  brings  it  within  this  class  of  estates.  1  Taylor, 
Landlord  &  Tenant,  §§  52,  "^Z,  states  the  rule  as  follows:  "An  estate 
for  life  may  be.  createjd  either  by  express  limitation  or  by  a  grant  in 
general  terms.  If  made  to  a  man  for  the  term  of  his  own  life,  or 
Aig.Pkop. — 37 


y 


VQ. 


(^ 


578  DERIVATIVE  TITLES  (Part  2 

for  that  of  another  person,  he  is  called  a  tenant  for  life.  But  the 
estate  may  also  be  created  by  a  general  grant,  without  defining  any 
specific  interest,  as  where  a  grant  is  made  to  a  man,  or  to  a  man  and 
his  assigns  without  any  limitation  in  point  of  time,  it  will  be  considered 
as  an  estate  for  life,  and  for  the  life  of  the  grantee  only.  *  *  * 
Where  a  grant  is  made,  subject  to  be  defeated  by  a  particular  event, 
and  there  is  no  limitation  in  point  of  time,  it  will  be  ab  initio  a  grant. 
of  an  estate  fqrjife,  as  much  as  if  no  such  event  had  been  contem- 
plated. Thus,  if  a  grant  be  made  to  a  man  so  long  as  he  shall  inhabit  a 
certain  place,  or  to  a  woman  during  her  widowhood,  as  there  is  no  cer- 
tainty that  the  estate  will  be  terminated  by  the  change  of  habitation  or 
by  the  marriage,  respectively,  of  the  lessees,  the  estate  is  as  much  an 
estate  for  life,  until  the  prescribed  event  takes  place,  as  if  it  had  been 
so  granted  in  express  terms." 

The  author's  statement  of  the  law  is  sustained  by  the  otlier  writers 
on  the  subject  (4  Kent,  Com.  27;  2  Blackstone,  121),  and  by  the  ad- 
judicated cases.  In  Warner  v.  Tanner,  38  Ohio  St.  118,  a  life  estate 
was  held  to  be  created  by  a  lease  for  a  yearly  rent  extending  during 
the  time  the  lessee  should  continue  to  occupy  the  premises  for  a  par- 
ticular purpose.  In  Mickie  v.  Woods'  Ex'r,  5  Rand.  (Va.)  571,  574, 
the  grant  was  to  continue  so  long  as  the  tenant  should  pay  the  stipulated 
rent.  It  was  held  a  life  estate.  A  grant  "so  long  as  the  waters  of  the 
_Pelaware  shall  rvui"  was  held  in  Foster  v.  Joice,  3  Wash.  C.  C.  498, 
]^  Fed.  Cas.  No.  4,974,  to  create  a  life  estate.     In  Hurd  v.  Gushing,  24 

Mass.  (7  Pick.)  169,  the  premises  were  leased  at  a  fixed  yearly  rent 
for  the  term  "so  long  as  the  salt  works"  to  be  located  thereon  should 
continue  in  operation.  It  was  held  a  life  estate.  In  Thomas  v.  Thomas, 
17  N.  J.  Eq.  356,  it  was  held  that  a  right  given  by  a  will  to  occupy 
at  a  specified  annual  rent  certein  premises  so  long  as  the  devisee  "may 
desire  to  occupy  the  same  as  a  drug  store"  amounted  to  an  estate  for 
life.  See  also  to  the  same  effect,  16  Cyc.  614;  Maverick  v.  Gibbs,  3 
McCord  (S.  G.)  315;  People  v.  Gillis,  24  Wend.  (N.  Y.)  201;  Rose- 
boom  V.  Van  Vechten,  5  Denio  (N.  Y.)  414;  Ely  v.  Randall,  68  Minn. 
177,  70  N.  W.  980. 

The  lease  in  the  case  at  bar  conies  within  the  rule  of  these  authori- 
ties, and  the  trial  court  properly  held  that  it  vested  in  defendant  a 
_     life  estate,  terminable  only  at  his  death  or  his  removal  from  Albert 
Lea. 

Judgment  affirmed.^'  ^^  ,     -.^^jlJ'  . 

12  Beauchamp  y.  Runuels,  35  Tex.  Civ.  App.  212,  79  S.  W.  1105  (1904),  contra. 

By  act  of  Parliament  tlie  fee  of  certain  lands  was  vested  in  a  board  of 
deputies,  which  was  authorized  to  allot  portions  of  the  lauds  to  persons  to  hold 
same  so  long  as  they  should  be  willing,  and  pay  a  specified  annual  rent,  and 
conform  to  the  orders  and  regulations  to  be  made  from  time  to  time  by  the 
deputies.  The  seventeenth  section  of  the  act  empowered  the  deputies  to  dis- 
pose, by  absolute  sale,  any  portion  of  the  premises,  freed  from  any  claim  by 
any  resident  allottee.  By  t'he  twenty-second  section  no  sale  was  to  be  effected 
without  the  consent  of  the  majority  of  tlie  allottees  in  regular  meeting  as- 


Ch.  5)  ESTATES  CREATED  579 

II.  Legai, 
(A)  In  Tail  After  Possibility  of  Issue  Extinct 

LITTLETON'S  TENURES. 

Tenant  in  f ee^  tail  after  possibility  of  issue  extinct  is,  where  tene- 
ments are  given  to  a  man  and  to  his  wife  in  especial  tail,  if  one  of 
them  die  without  issue,  the  survivor  is  tenant  in  tail  after  possibility 
of  issue  extinct.  And  if  they  have  issue,  and  the  one  died,  albeit  that 
during  the  life  of  the  issue,  the  survivor  shall  not  be  said  tenant  in 
tail  after  possibility  of  issue  extinct;  yet  if  the  issue  die  without 
issue,  so  as  there  be  not  any  issue  alive  which  may  inherit  by  force  of 
the  tail,  then  the  surviving  party  of  the  donees  is  tenant  in  tail  after 
possibility  of  issue  extinct. 

Also,  if  tenements  be  given  to  a  man  and  to  his  heirs  which  he  shall 
beget  on  the  body  of  his  wife,  in  this  case  the  wife  hath  nothing  in  the 
tenements,  and  the  husband  is  seised  as  donee  in  especial  tail.  And  in 
this  case,  if  the  wife  die  without  issue  of  her  body  begotten  by  her 
husband,  then  the  husband  is  tenant  in  tail  after  possibility  of  issue 
extinct. 

And  note,  that  none  can  be  tenant  in  tail  after  the  possibility  of  issue 
extinct,  but  one  of  the  donees,  or  the  donee  in  especial  tail.  For 
the  donee  in  general  tail  cannot  be  said  to  be  tenant  in  tail  after 
possibility  of  issue  extinct :  because  always  during  his  life,  he  may  by 
possibility  have  issue  which  may  inherit  by  force  of  the  same  entail. 
And  so  in  the  same  manner  the  issue,  which  is  heir  to  the  donees  in  es- 
pecial tail,  cannot  be  tenant  in  tail  after  possibility  of  issue  extinct, 
for  the  reason  abovesaid. 

And  note,  that  tenant  in  tail  after  possibility  of  issue  extinct  shall 
not  be  punished  of  waste,  for  the  inheritance  that  once  was  in  him, 
10  H.  6.  1.  But  he  in  the  reversion  may  enter  if  he  alien  in  fee,  45  E. 
3.  22. 

Sections  32,  33,  34. 

sembled.  Under  a  statute  alloaving  only  freeholders  to  vote  at  a  certain  elec 
tion,  was  an  allottee  of  such  lands  entitled  to  vote? 

Under  a  devise  "to  M."  of  "my  cottajre  and  all  it  contains  at  Nahant — to  use 
for  the  term  of  five  years  or  longer,"  what  estate  did  M.  take?     -t   _^  . 

Land  was  leased  at  a  certain  rent  "for  such  time  as  the  lessee,  his  heirs  and 
assigns,  may  occupy  the  same  for  a  sawmill  yard."  There  was  a  provision  that 
possession  should  be  yielded  to  the  lessor,  "his  heirs  or  assigns,  at  the  time  of 
the  expiration  of  the  occupation  of  said  premises  for  sawmill  purposes."  What 
estate  did  the  lessee  have?     See  Gilmore  v.  Hamilton,  83  Ind.  196  (1SS2). 


580  DERIVATIVE  TITLES  (Part  2 

(B)  Husband's  Interest  in  Wife's  Realty 
LITTLETON'S  TENURES. 

Tenant  by  the  curtesy  of  England  is,  where  a  man  taketh  a  wife 
seised  in  fee  simple  or  in  fee  tail,  general,  or  seised  as  heir  in  tail  espe- 
cial, and  hath  issue  by  the  same  wife  male  or  female  born  alive  (oyes 
ou  vife,)  alheit  the  issue  after  dieth  or  liveth,  yet  if  the  wife  dies,  the 
husband  shall  hold  the  land  during  his  life  by  the  law  of  England. 
And  he  is  called  tenant  by  the  curtesy  of  England,  because  this  is  used 
in  no  other  realm  but  in  England  only. 

And  some  have  said,  that  he  shall  not  be  tenant  by  the  curtesy,  un- 
less the  child,  which  he  hath  by  his  wife,  be  heard  cry ;  for  by  the  cry 
it  is  proved,  that  the  child  was  born  alive.  Therefore  Ouxre.  Sec- 
tion Zd. 


MONTGOMERY  v.  TATE. 

(Supreme  Court  of  Indiana,  1S59.     12  Ind.  615.) 

WoRDEx,  J.  This  was  an  actio'n  by  the  appellee  against  the  appel- 
lant, to  recover  the  possession  of  a  certain  piece  of  laud  described  in 
the  complaint.  There  are  two  paragraphs  in  the  complaint,  one  claim- 
ing a  fee  simple,  and  the  other  a  life  estate  in  the  land. 

Answer  in  denial.  Trial  by  jury;  verdict  and  judgment  for  plain- 
tiff, over  a  motion  for  a  new  trial. 

By  a  bill  of  exceptions  it  appears,  that  on  the  trial  the  plaintiff 
proved,  prima  facie,  a  title  to  the  land  in  herself,  either  in  fee  simple 
or  for  life;  but  whether  her  evidence  established,  prima  facie,  a  fee 
simple  interest  in  her,  or  a  life  estate  merely,  it  is  wholly  unnecessary 
to  determine  for  the  purposes  of  this  case ;  therefore  we  shall  express 
no  opinion  in  reference  to  it. 

After  the  plaintiff'  became  seized  of  the  premises,  she  intermarried 
with  one  John  B.  Tate,  who  is  still  living,  and  the  husband  of  the  plain- 
tiff. Afterwards,  in  September,  1840,  Bates  and  Abrams  recovered  a 
judgment  in  the  Fayette  Circuit  Court  against  William  Tully  and  the 
said  John  B.  Tate,  for  the  sum  of  177  dollars,  60  cents,  besides  costs 
of  suit,  on  which  an  execution  was  afterwards  issued,  which  was  levied 
upon  the  property  in  controversy,  as  the  property  of  said  John  B. 
Tate,  "for  and  during  the  natural  life  of  Ursula  Tate,  wife  of  said  John 
B.  Tate,"  and  the  property,  on  a  venditioni  exponas,  was  afterwards 
sold,  according  to  law,  to  satisfy  the  judgment  and  costs. 

James  Miller  and  San  ford  P.  White  became  the  purchasers  at  the 
sheriff's    sale,    and    received    his    deed    for    the    premises,    conveying 


Ch.  5)  ESTATES  CREATED  581 

to  them  the  interest  of  said  John  B.  Tate  therein  during  the  life- 
time of  his  wife,  Ursula  Tate.  This  took  place  in  1842.  Miller  and 
White  afterwards  conveyed  to  Elisha  Vance,  and  Vance  to  the  defend- 
ant^  Montgomery. 

On  these  facts,  the  Court  charged  the  jury,  "that  if  they  believed  the 
evidence,  it  would  be  their  duty  to  find  for  the  plaintiff." 

The  defendant  asked  several  charges,  to  the  effect  that  if  the  jury 
believed  the  propositions  relied  upon  by  defendant  in  support  of  his 
title  (substantially  those  contended  in  the  evidence),  it  would  be 
their  duty  to  find  for  the  defendant.  These  were  refused,  and  the 
defendant  excepted  to  the  ruling  of  the  Court  in  giving  and  refusing 
the  charges. 

At  common  law,  by  the  marriage  of  Ursula  with  John  B.  Tate,  he 
became  entitled  to  an,  estate  in  her  lands  during  their  joint  lives. 
This  estate  is  as  absolute  and  perfect  in  him  during  that  period,  as, 
if  accfuired  by  conveyance,  or  in  any  other  mode.  Itjs  subject  to  sale 
on  execution  against  him,  and  may  be  conveyed  by  him.  Vide  2 
KenFs  Com.  131;  Butterfield  v.  Beall,  3  Ind.  203;  Junction  Railroad 
Co.  V.  Harris,  9  Ind.  184,  68  Am.  Dec.  618. 

But  it  is  contended  that  the  law  of  1838  (R.  S.  1838,  p.  276,  §  1), 
in  force  at  the  time  of  the  sale  in  question,  subjecting  property  to 
sale  on  execution,  does  not  authorize  such  estates  to  be  sold  on  ex- 
ecution. It  provides,  "that  the  personal  and  real  estate  of  every  in- 
dividual," &c.,  "including  his,  her,  or  their  goods,  chattels,  lands,  tene- 
ments and  hereditaments,  be  and  the  same  are  hereby  made  subject  to 
execution,"  &c. 

The  counsel  say  that,  "Nowhere  do  they  find  any  law  authoriz- 
ing the  selling  of  the  wife's  interest  in  land  for  the  debts  of  her  hus- 
band." No  interest  of  the  wife  is  sold;  for  the  entire  estate  in  the 
land  is,  by  the  marriage,  vested  in  the  husband  during  their  joint 
\\yes_.  During  .their  joint  lives  she  has  no  estate  in  the  lands.  Such 
estate  being  vested  in  the  husband,  it  is  very  clearly  within  the  terms 
of  the  statute,  and  subject  to  sale  on  execution  against  him. 

Subsequent  legislation  has,  perhaps,  changed  this  rule.  See  Acts 
of  1847,  p.  45,  and  1  R.  S.  p.  321,  §  5.  But  these  acts  can  have  no 
influence  on  the  case  at  bar,  as  the  sale  here  took  place  before  either  of 
them  was  enacted. 

A  contingency  may  arise  that  will  abridge  the  term  conveyed  by  the 
sheriff's  deed,  to  a  less  period  than  that  of  the  life  of  said  Ursula. 
The  death  of  said  John  B.  leaving  her  surviving  him,  would,  perhaps, 
terminate  the  estate  conveyed ;  but  this  does  not  at  all  vitiate  the  deed. 
It  would  be  good  for  whatever  interest  he  had  in  the  premises,  not 
extending  beyond  the  lifetime  ofsaid  Ursula. 

Both  husband  and  wife  being  still  alive,  the  term  conveyed  b.y  the 
sheriff's  deed  is  not  yet  expired,  and  the  defendant's  title  to  premises 
derived  from  such  sale,  still  subsists. 


582  DERIVATIVE  TITLES  (Part  2 

The  ruling  of  the  Court  was  wrong,  and  the  judgment  must  be  re- 
versed. 

The  judgment  is  £eversed  with  costs.  Cause  remanded  for  a  new 
trial/3  "■  ;  / 


/ 

MATTOCKS  V.  STEARNS.  S^— ^i^l 

(Supreme  Court  of  Vermont,  1837.    9  Vt.  326.) 

This  was  an  action  of  ejectment  for  about  seven  eighths  of  an 
acre  of  land  in  the  village  of  Danville. 

Plea,   severally,  not  guilty,  and  issue  to  the  jury.     On   trial  the 
plaintiffs  introduced  a  deed  from  Josiah  Bellows  to  Caleb  Wheaton, 
dated  10th  May,  1828,  containing  the  land  in  question.     He  also  in- 
troduced, a  levy  of  execution  upon  the  same  land  in  his  favor,  against 
,j      John  Stearns,  one  of  the  defendants,  dated  August  5th,  1834.    He  then 
^  •/  «A«.p*^      introduced  evidence,  tending  to  prove,  that  Caleb  Wheaton  was  the 
\  father  of  John  Stearns'  wife,  the  other  defendant,  and  that  he  died 

^  seized  and  possessed  of  the  premises  sued  for,  and  that  his  estate 

y    /      was  nearly  settled  and  the  debts  all  paid,  and  that  he  left  a  wife  and 
two  children  living,  to  wit:   Mrs.  Stearns  and  Zalmon  Wheaton. 

The   plaintiff   further   introduced   evidence   tending  to   show,   that 
John  Stearns  had  absconded  to  Canada,  about  two  years  ago,  and  a 
short  time  before  the  levy,  and  that  his  wife  and  children  lived  on  and 
t*/l6  took  care  of  the  premises. 

y.   \  The  plaintiff'  then  produced  two  written  notices,  one  to  Mrs.  Steams, 

""^'''f^  ^        and  one  to  C.  Davis,  defendants'  counsel,  requiring  them  to  produce 

a  deed,  from  said  Zalmon  Wheaton  to  Mrs.  Stearns,  of  the  premises, 

and  no  deed  being  produced  by  defendants  and  no  copy  of  any 

deed   being   offered   by    the   plaintiff,    he    offered   Zalmon    Wheaton 

as  a  Avitness  to  prove  the  contents  of  a  deed,  executed  by  him ;   which 

testimony  was  objected  to  by  the  defendants  but  was  admitted  by  the 

court,  and  said  Zalmon  was  sworn,  and  testified  that  he,  on  the  5th 

October,  1832,  executed  a  quit  claim  deed  of  the  premises  to  his  sister, 

j\Irs.  Stearns,  and  that  she,  at  the  same  time,  executed  a  quit  claim 

deed  to  the  witness  of  some  other  real  estate  left  by  their  father,  and 

that  there  was  no  distribution  of  the  real  estate  among  the  heirs  by 

decree  of  the  probate  court,  and  that  the  widow  of  Caleb  Wheaton 

.  had  relinquished  her  right  of  dower,  in  consideration  of  a  support, 

' '^  guarantied  by  the  witness.    Here  the  plaintiff  rested  his  case.     It  was 

13  "We  are  still  living  under  the  common-law  rule  which  gives  the  husband 
a  freeihold  estate  for  the  joint  lives  of  himself  and  his  wife  in  her  lands  which 
she  held  at  the  time  of  her  maniage,  except  such  as  she  held  to  her  sole  and 
separate  use.  In  this  land,  therefore,  the  petitionee  has  such  a  freehold  inter- 
est. In  that  sense  and  to  that  extent  it  is  his  estate.  He  is  entitled  to  the 
rents  and  profits  thereof."  Hubbard  v.  Hubbard,  77  Vt.  73,  76,  58  Atl.  969,  67 
L.  R.  A.  969,  107  Am.  St.  Rep.  749,  2  Ann.  Cas.  315  (1904),  per  Stafford,  J.  See, 
also,  Ballantiue  &  Sons  v.  Fenn,  88  Vt.  166,  170,  92  Atl.  3  (1914). 


4^ 


)  oUiid' 


Ch.  5)  ESTATES  CREATED  583 

admitted  the  defendants  had  issue  born  ahve.  The  defendants  re- 
quested the  court  to  instruct  the  jury,  that  upon  this  evidence  the 
plaintiff  was  not  entitled  to  recover  against  both  defendants,  or  either. 
But  the  court  instructed  the  jury,  that  if  they  believed  the  said  testi- 
mony, the  plaintiff  was  entitled  to  recover  possession,  of  the  premises, 
and  costs,  against  both  defendants ;  to  which  decision  of  the  court,  in 
admitting  parol  evidence,  in  relation  to  the  deed  to  Mrs.  Stearns,  and  to 
the  said  instructions  to  the  jury,  the  defendants  excepted. 

RedfiEld,  J.^*  *  *  *  The  freehold  title  of  the  wife  being  made 
out,  and  the  plaintiff's  levy  being  admitted  to  be  formal,  and  it  being 
also  admitted,  that  the  defendants  had  issue  born  alive,  it  only  remains 
to  inquire  whether  the  defendant,  John  Stearns,  had  such  an  estate  in  d 

the  Tand,  as  was  liable  to  be  levied  upon  by  his  creditors. 

The  "statute."  pro vide"s.  that,  "any  estate,  held  by  the  debtor  in  his 
own  right  in  fee,  or  for  his  own  life,  or  the  life  of  another,  paying  no 
rents  therefore,"  shall  be  subject  to  be  levied  upon. 

We  see  no  difficulty  in  considering  this  an  estate,  which  the  debtor 
jield  in  his  own  right.  The  title  was,  indeed,  derived  through  the  right 
of  his  wife,  but,  by  virtue  of  the  marriage,  he,  as  husband,  acquires  cer- 
tain rights,  among^jyhich,  the  use  of  the  freehold  estate  of  inheritance 
of  the  wife,  during  the  covcrture,_is__one.  After  issue  born  alive,  this 
estate  is  enlarged  and  extends  not  only  during  the  coverture,  but 
till  the  death  of  the  husband,  except  in  one  event,  which  will  be  named 
hereafter.  This,  in  England,  after  the  death  of  the  wife,  was  denom- 
inated an  estate  by  the  curtesy,  but  is  strictly  an  estate,  which  the  hus- 
band hofcTi  in  his  own  right,  whether  before  or  after  the  death  of  the 
wife.  He  may  bring  trespass  or  ejectment  in  his  own  name,  for  any 
injury  to  the  usufruct  during  the  continuance  of  his  estate. 

The  next  inquiry  is,  whether  this  is  an  estate  for  the  life  of  the  debt-  '    ■ 

or.  It  is  undoubtedly  true,  that  this  estate  might  be  determined  by 
a  divorce,  a  vinculo,  before  the  death  of  either  husband  or  wife.  But 
this  is  a  contingency  of  so  remote  expectation,  as  not  to  enter  into 
the  ordinary  calculations  of  the  duration  of  the  relation  of  married 
life.  It  is  one  of  those  extreme  cases,  which,  like  earthquakes  and 
tempests  in  the  natural  world,  or  like  public  executions  in  the  history 
of  individual  existence,  do,  indeed,  sometimes  occur,  but  which  no  one 
feels  bound  to  expect  or  to  provide  against. 

14  Only  a  portion  of  the  opinion  is  given  here. 

In  Canby  v.  Porter,  12  Ohio,  79  (1813),  the  plaintiff  in  ejectment  claimed  un- 
der an  execution  sale  upon  a  jiidignient  against  the  defendant.  The  land  in 
question  was  owned  in  fee  by  defendant's  wife.  Issue  had  been  born.  In  up- 
holding plaintiff's  contention  the  court  said :  "'We  have  been  furnished  \^'ith  no 
argument  by  the  defendant;  but  the  plaintiff's  right  to  recover  seems  plain. 
For  the  interest  of  the  husband  is  a  legal  estate;  it  is  a  freehold  during  the 
joint  lives  of  himself  and  wife,  with  a  freehold  in  remainder  to  himself  for 
life,  as  tenant  by  the  curtesy,  and  a  remainder  to  the  wife  and  her  heirs,  in 
fee.  It  is  a  certain  and  determinate  interest,  whose  value  may  be  easily  as- 
certained by  reference  to  well-known  rules.  It  is,  in  every  sense,  his  'land,' 
■within  the  meaning  of  the  statute,  and  liable  to  respond  for  his  debts." 


K2 


584  DERIVATIVE  TITLES  (Part  2 

This,  then,  is  an  estate  for  the  Hfe  of  the  debtor,  depemiing  upon 
this  remote  contingency,  which  no  honest  or  prudent  man  could  antic- 
ipate in  his  own  case,  and  which  the  law  cannot  regard  until  it  occurs. 
And  should  the  contingency  happen,  and  thus  the  estate  of  the  levying 
creditor  be  determined,  it  is  no  detriment  to  the  debtor,  nor  has  he 
any  just  cause  of  complaint.  His  debt  is  paid,  and  the  loss  and  risk, 
if  any,  fall  upon  the  creditor. 

But  if  this  were  a  contingency  still  less  remote,  it  would  not  change 
the  character  of  the  estate. 

An  estate  to  a  woman  durante  viduitate,  or  dum  sola,  or  to  a  man,  so 
long  as  he  shall  dwell  in  a  particular  house,  are  all  estates  for  life, 
although  each  particular  class  of  those  estates  is  liable  to  be  determined 
any  hour,  and  that  during  the  life  time  of  the  person,  by  the  term  of 
whose  existence  the  estate  is  otherwise  to  be  measured.  1  Cruise's  Di- 
gest, 77.     1  Institutes,  42,  a.     *     *     * 

The  judgment  of  the  County  Court  is  affirmed.      ,^jla/    J^^'  " 

FOSTER  V.  MARSHALL. 

(Superior  Court  of  Judicature  of  New  Hampshire,  3S.51.     22  N.  IT.  401.) 

Writ  of  entry.  The  facts  in  this  case  are  sufficiently  stated  in  the 
opinion  of  the  Court. 

Bell,  J.  The  principal  question  arising  in  this  case,  is  as  to  the 
effect  of  the  Statute  of  Limitations  upon  the  demandant's  right  of 
action.  It  appeared  that  the  demanded  premises  were  set  off  by  a 
committee  of  partition,  appointed  by  the  Court  of  Probate,  to  Mary 
Foster,  formerly  Mary  Eastman,  the  mother  of  the  demandant,_as  her 
share  of  the  estate  of  her  father,  Samuel  Eastman,  deceased,  on  the 
14th  of  May,  1814.  Mary  Foster  was  then  tine  wife  of  Frederick  Fos- 
ter, by  whom  she  then  had  one  or  more  children.  Frederick  Foster 
died  in  1834,  and  his  wife  in  1836.  They  had  six  children,  whose 
rights  are  said  to  be  now  vested  in  the  plaintiff. 

The  defendant  proved,  that  in  1817,  one  Morrill  was  in  possession, 
claiming  to  be  the  owner  of  the  demanded  premises.  He  conveyed 
the  same  by  deed,  dated  July  3,  1817,  to  one  Marshall,  who  entered  and 
occupied,  claiming  title,  till  April  30th,  1847,  when  he  conveyed  to 
the  tenant,  who  has  since  remained  in  possession.  The  tenant  claims 
that  he  has  a  perfect  title  by  thirty  years  undisturbed  and  peaceable 
possession.  The  demandant  alleges  that  his  right  is  not  barred,  be- 
cause at  the  time  when  tlie  disseisin  occurred,  in  1817,  Mrs.  Foster 
was  a  feme  covert,  and  up  to  1834  her  husband  had  an  estate  for  life 
in  the  premises  and  she  had  no  right  of  entry  until  his  decease,  and 
consequently  no  right  of  action  till  then,  and  that  since  that  time  twenty 
years  have  not  elapsed. 

Under  the  Statute  of  Limitations,  which  was  in  force  in  this  State 
before  the  Revised  Statutes,  it  must  be  considered  settled,  that  the 


Ch.  5)  ESTATES   CREATED  585 

Statute  did  not  affect  the  T\ght  of  a  remainderman  or  reversioner,  dur- 
ing the  continuance  of  the  particular  estate;  and  that  neither  the  acts 
nor  the  laches  of  the  tenant  of  the  particular  estate  could  affect  the 
party  entitled  in  remainder.  Wells  v.  Prince,  9  Mass.  503;  Walling- 
ford  V.  Hearl,  15  Mass.  471;  Tilson  v.  Thompson,  10  Pick.  (Mass.) 
359. 

No  right  of  entry  or  action  accrued  to,  or  vested  in  the  heirs  of  the 
wife  during  the  continuance  of  an  estate  by  the  curtesy.  Jackson  v. 
Schoonmaker,  4  Johns.  (N.  Y.)  390. 

But  the  party  entitled  is  not  barred,  until  tlie  usual  period  of  limita- 
tion after  the  termination  of  the  life  estate.  Heath  v.  White,  5  Conn. 
228;    Witham  v.  Perkins,  2  Greenl.  (Me.)  400. 

If,  then,  the  husband  had,  in  this  case,  an  estate  by  the  curtesy,  or 
any  interest  in  the  land  which  would  entitle  his  wife,  who  survived, 
to  be  regarded  as  seised  only  in  remainder  or  reversion,  she  and  her 
heirs  would  have  the  full  period  of  twenty  years  after  the  death  of  tlie 
husband,  to  commence  their  action. 

To  constitute  a  tenancy  by  the  curtesy,  the  death  of  the  wife  is  one 
of  the  four  things  required.  The  estate  of  the  husband  is  initiate 
upon  the  birth  of  issue.  It  is  consummate  on  the  death  of  the  wife. 
4  Kent's  Comm.  29;   Co.  Litt.  30,  a.  r  2fcv^  »/  -^ 

By  the  intermarriage,  the  husband  acquires  a  freehold  interest,  dur-  .'.  JHe*^  . 
ing  the  joint  lives  of  himself  and  his  wife,  in  all  such  freehold  prop- 
erty of  inheritance,  as  she  was  seised  of  at  the  time  of  marriage,  and 
a  like  interest  vests  in  him  in  such  as  she- may  become  seised  of  dur- 
ing the  coverture.  The  husband  acquires  jointly  with  the  wife,  a 
seisin  in  fee  in  the  wife's  freehold  estates  of  inheritance,  the  husband 
and  wife  being  seised  in  fee  in  right  of  the  wife.  Gilb.  Ten.  108;  Co. 
Litt.  67,  a;  Palvblank  v.  Hawkins,  1  Saund.  Rep.  253,  n. ;  s.  c.  Doug. 
350. 

This  interest  may  be  defeated  by  the  act  of  the  wife  alone ;  as  if, 
at  common  law,  the  wife  is  attainted  of  felony,  the  lord  by  escheat 
could  enter  and  eject  the  husband.  4  Hawk.  P.  C.  78;  Co.  Litt.  40,  a ; 
Vin.  Ab.  Curtesy,  A;    Co.  Litt.  351,  a. 

After  the  birth  of  issue  the  husband  is  entitled  to  an  estate  for  his 
own  life,  and  in  his  own  right,  as  tenant  by  the  curtesy  initiate.  Co. 
Litt.  351,  a,  30,  a,  124,  b;  Schermerhorn  v.  Miller,  2  Cow.  (N.  Y.) 
439.  He  then  becomes  sole  tenant  to  the  lord,  and  is  alone  entitled  to 
do  homage  for  the  land,  and  to  receive  homage  from  the  tenants  of 
it,  which  until  issue  born  must  be  done  by  husband  and  wife.  2  Black. 
Comm.  126;   Litt.  §  90;    Co.  Litt.  67,  a,  30,  a. 

Then  he  may  forfeit  his  estate  for  life  by  a  felony,  which,  until  is- 
sue born,  he  could  not  do,  because  his  wife  was  tlie  tenant.  2  Black. 
Comm.  126;   Roper,  Hus.  &  Wife,  47. 

If  the  husband,  after  the  birth  of  issue,  make  a  feoffment  in  fee,  and 
then  the  wife  dies,  the  feoffee  shall  hold  the  land  during  the  husband's 


586  DERIVATIVE  TITLES  (Part  2 

life;   because  by  the  birth  of  issue,  he  was  entitled  to  curtesy,  jvhich_ 
beneficial  interest  passed  by  the  feoffment..    Co.  Litt.  30,  a. 

If  such  feoffment  is  .made  before  issue  born,  the  husband's  right 
to  curtesy  is  gone,  even  though  the  feoft'ment  be  conditional  and  be 
afterwards  avoided.  And  if  in  such  case  the  husband  and  wife  be 
divorced  a  vinculo  matrimonii,  the  wife  may  enter  immediately.  Gune- 
ley's  Case,  8  Co.  Rep.  7Z. 

The  husband's  estate  after  issue  born,  will  not  be  defeated  by  tlie.at 
tainder  of  the  wile,,  for  his  tenancy  continues,  he  being  sole  tenant. 
1  Hale,  P.  C.  359;   Co.  Litt.  351,  a,  40,  a;   Bro.  Ab.  Forf.  78. 
y/  The  obvious  conclusion  from  these  views  of  the  nature  of  the  in- 

terest of  a  tenant  by  the  curtesy  initiate  is,  that  such  tenant  is  seised 
of  a  freehold  estate  in  his  own  right,  and  the  interest  of  his  wife  is^ 
mere  reversionary  interest,  depending  upon  the  life  estate  of  the  hus- 
band. The  necessary  result  of  this  is,  that  the  wife  cannot  be  preju- 
diced by  any  neglect  of  the  husband,  and  of  course  she  may  bring  her 
action,  or  one  may  be  brought  by  her  heirs,  at  any  time  within  twenty 
^ears  after  the  decease  of  the  husband,  when  his  estate  by  the  curtesy, 
whether  initiate,  or  consummate,  ceases,  and  her  right  of  action,  or 
that  of  her  heirs,  accrues.  In  tliis  respect  there  is  no  distinction  be- 
tween curtesy  initiate  and  curtesy  consummate.  Melvin  v.  Locks  & 
Canals,  16  Pick.  (Mass.)  140. 

So  far  as  we  are  aware,  this  principle  has  never  been  questioned, 
where  the  inheritance  of  the  wife  has  been  conveyed  to  a  third  per- 
son, either  by  the  deed  of  the  husband  alone,  or  by  a  deed  executed  by 
husband  and  wife,  which  from  some  defect  did  not  bind  the  interest 
of  the  wife.  Miller  v.  Shackleford,  3  Dana  (Ky.)  289;  Culler  v. 
Metzer,  13  Serg.  &  R.  (Pa.)  356,  15  Am.  Dec.  604;  Fagan  v.  Walker, 
27  N.  C.  634;  McCorry  v.  King,  3  Humph.  267,  39  Am.  Dec.  165; 
Melius  V.  Snowman,  21  Me.  201 ;  Meraman  v.  Caldwell,  8  B.  Mon. 
(Ky.)  32,  46  Am.  Dec.  537;  Gill  v.  Fauntleroy,  8  B.  Mon.  (Ky.)  177; 
Melvin  v.  Locks  &  Canals,  16  Pick.  (Mass.)  140.  But  it  has  been  held, 
(Melvin  v.  Locks  &  Canals,  16  Pick.  (Mass.)  161 ;  Kittredge  v.  Locks 
&  Canals,  17  Pick.  (Mass.)  246,  28  Am.  Dec.  296,)  that  where  a  dis- 
seizin has  been  committed  upon  the  wife's  estate,  the  disseizin  is  done 
alike  to  the  husband  and  wife;  that  a  joint  right  of  entry  and  of  ac- 
tion accrues  to  both  for  the  recovery  of  it,  and  that  if  such  remedy 
is  not  prosecuted  within  twenty  years,  it  is  barred. 

This  is  true  where  the  husband  has  acquired  no  estate  by  the  cur- 
tesy, and  is  seized  merely  in  the  right  of  the  wife  of  her  estate.  Such 
are  the  cases  of  Guion  v.  Anderson,  8  Humph.  (Tenn.)  298;  Melius 
V.  Snowman,  21  Me.  201. 

And  if  the  husband  is  tenant  by  curtesy,  as  he  and  his  wife  are 
seized  of  the  fee  in  right  of  the  wife,  the  action  must  be  brought  by 
husband  and  wife,  and  a  joint  seizin  in  fee  alleged  in  them  in  her 
right.     Anon.,  Buls.  21.     Their  joint  right  pj  action  is  barred  by  the 


Ch.  5)  ESTATES   CREATED  587 

J^apse  of  twentyyears  after  it  accrues.  But  it  by  no  means  follows, 
"that  the  reversionary  right  of  the  wife,  accruing  in  possession  after 
the  estate  of  her  husband  has  ceased,  is  also  barred.  It  is  well  settled, 
that  the  same  party  may  have  several  and  successive  estates  in  the 
same  property,  and  several  rights  of  entry  by._virtu£„oi_those  estates, 
and  one  of  those  rights  may  be  barred  without  the  others  being  af- 
fec^d.  Hunt  v7Burn,  2  Salk.  422;  Wells  v.  Prince,  9  Mass.  508; 
Stevens  v.  Winship,  1  Pick.  (Mass.)  318,  11  Am.  Dec.  178;  Tilson  v. 
Thompson,  10  Pick.  (Mass.)  359. 

And  every  reason,  which  can  exist  in  favor  of  the  right  of  any  re- 
versioner, applies  equally  in  this  case,  namely,  that  a  reversioner  has 
as  such,  no  right  of  entry  and  no  right  of  action  during  the  particular 
estate,  and  consequently  is  not  barred  until  twenty  years  after  his  own 
right  of  entry  accrued.  2  Sugd.  V.  &  P.  353 ;  3  Steph.  N.  P.  2920, 
n.  10;  Wells  v.  Prince,  9  Mass.  508;  Stevens  v.  Winship,  1 
Pick.  (Mass.)  318;  Wallingford  v.  Hearl,  15  Mass.  471;  Tilson  v. 
Thompson,  10  Pick.  (Mass.)  359;  Jackson  v.  Schoomaker,  4  Johns. 
(N.  Y.)  390,  before  cited.  Besides,  the  wife  by  reason  of  her  dis- 
ability can  make  no  entry  to  revest  her  estate  during  the  coverture. 
Ijitt.  p.  403  ;  Co.  Litt.  246,  a.  Coke  says,  in  express  terms,  "after  cover- 
ture, she  (the  wife,)  cannot  enter  without  her  husband." 

In  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74,  15  Am.  Dec.  433,  and 
Heath  v.  White,  5  Conn.  228,  this  question  arose,  and  was  decided  in 
accordance  with  our  views,  and  we  think  upon  sounder  principles  than 
the  cases  in  Massachusetts,  to  which  we  have  referred. 

We  have  compared  the  provisions  of  the  Revised  Statutes  with  the 
older  Statutes,  and  do  not  perceive,  that  there  is,  as  to  the  point  in 
question,  any  difference  in  their  effect.  Under  neither  would  the  plain- 
tiff propose  to  claim  any  advantage  from  the  proviso.  His  ground  is 
not  that  the  ancestor  was  a  married  woman,  when  her  right  accrued ; 
but  that  her  marriage  and  the  birth  of  one  or  more  children  had  vested 
a  life  estate  in  her  husband,  and  that  the  disseizin  was  done  to  him, 
and  that  no  right  of  action  accrued  to  her  in  virtue  of  the  reversionary 
interest,  under  which  her  heirs  now  claim,  until  she  became  a  widow, 
and  the  husband's  estate  had  terminated ;  and  that  the  action  is 
brought  within  twenty  years  after  that  event.  This  appears  to  us  a 
correct  view  of  the  case,  and  of  the  law ;  and  the  verdict  must  there- 
fore be  set  aside,  and  a 

New  trial  granted.  ^/ 


58S  DERIVATIVE  TITLES  (Part  2 

BORLAND'S  LESSEE  et  al.  v.  MARSHALL. 
HUNTER'S  LESSEE  v.  DURRELL. 

(Supreme  Court  of  Ohio,  1853.     2  Ohio  St.  308.) 

Both  these  cases  depend  on  the  same  question.  They  are  wrltS-oi 
errorjtfi  the  court  of  common  pleas  of  Hamilton  county,  and  are  part 
of  the  series  to  which  belong  the  cases  of  Buchanan  v.  Roy's  Lessee, 
2  Ohio  St.  251,  and  Fowler's  Lessee  v.  Whiteman,  2  Ohio  St.  270. 

In  the  case  of  Borland's  Lessee  v.  Marshall,  it  was  proved  by  the 
plaintiffs,  that  Isabella  Hill,  a  sister  of  Timothy  Trimble,  deceased, 
acquired  title  to  one-seventh  of  one-half  of  the  land  in  controversy, 
by  the  decease  of  her  brother  in  1810.  That  Isabella  died  leaving  is- 
sue, of  whom  Isabella,  wife  of  Charles  Borland,  was  one,  and  that  on 
the  death  of  her  mother,  in  1837,  Isabella  Borland  acquired  title,  by 
descent,  to  one-fourth  of  one-seventh  of  one-half  of  the  land.  That 
Isabella,  the  younger,  was  married  to  Charles  Borland  in  1819,  and 
that  she  died  intestate  in  1845,  leaving  two  children  as  her  heirs  at 
law,  who  are  the  lessors  of  the  plaintiff  in  this  case.  These  facts  they 
prove  by  Charles  Borland,  the  husband  of  Isabella,  and  the  father  of 
the  children. 

It  was  also  proved,  or  admitted  by  the  plaintiffs,  that  at  the  date 
of  the  adverse  possession  of  Mr.  Longworth,  the  lands  were  wild  and 
unsettled. 

In  the  case  of  Hunter's  Lessee  v.  Durrell,  it  was  proved  by  the 
plaintiffs,  that  Elizabeth  Trimble,  a  sister  of  Timothy  Trimble,  was 
married,  in  1790,  to  Samuel  Hunter,  by  whom  she  had  lawful  issue. 
That  Elizabeth  Hunter  died  about  the  year  1838,  leaving  issue,  who 
are  the  lessors  of  the  plaintiffs,  and  that  her  husband  and  the  father 
of  the  plaintiffs  was  living  when  this  suit  was  brought.  The  lands 
were  wild,  and  all  the  lessors  of  the  plaintiffs  were  non-residents  of 
the  State  of  Ohio. 

The  plaintiffs  then  rested  their  cause,  and  a  motion  was  made  by 
the  defendant  in  each  suit  for  non-suit  on  the  ground  that,  by  the  plain- 
tiff's own  showing,  a  freehold  estate  was  outstanding  in  Messrs.  Bor- 
land and  Hunter,  respectively,  as  tenants  by  the  curtesy,  and  that  no 
recovery  could  be  had  on  the  demises  of  the  present  plaintiffs  during 
the  existence  of  the  estates  by  the  curtesy.  These  motions  the  court 
allowed,  and  directed  judgment  of  nonsuit,  which  were  accordingly 
entered. 

The_plaintiffs  in  each  case  took  a  bill  of  exceptions  to  the  action 
of  the  court  in  granting  the  judgment  of  nonsuit,  and  to  review  that 
action  of  the  court  upon  these  motions  these  writs  of  error  are  prose- 
cuted. 

Thurman,  J.  The  decision  of  this  cause  depends  upon  the  answer 
that  shall  be  given  to  the  following  question :    Is  a  man  entitled  to 


Ch.  5)  ESTATES  CREATED  589 

curtesy  in  lands,  the  title  to  which  descended  to  his  wife  during  cover- 
ture, but  which  were  in  the  actual  possession  of  an  adverse  claimant 
from  the  time  her  title  accrued  until  her  death  ?  It  is  very  clear  that. 
by  the  strict  rule  of  the  common  law,  he  is  not;  and  for  the  reason 
tliat  neither  the  wife,  nor  the  husband  in  her  right,  was,  at  any  time 
during  coverture,  actually  seized  of  the  premises.     Four_things.  ac- 


cording  to  the  common  law,  are  necessary  to  create  an  estate  by  the 
curtesy,  viz:  marriage,  seizin  of  the  wife,  issue,  and  death  of  tlie  wife. 
Co.  Lit.  30a.  And  where  the  wife's  title  is  derived  by  inheritance,  or 
any  other  mode  requiring  an  entry  to  perfect  it,  the  seizin  must  be 
in  deed,  and  not  merely  in  law.  Co.  Lit.  29a;  Jackson  v.  Johnson,  5 
Cow.  (N.  Y.)  98,  15  Am.  Dec.  433. 

But  it  is  contended,  that  in  Ohio  seizin  is  unnecessary ;  and  this 
leads  us  to  inquire:  L  What  is  the  reason  of  the  common-law  rule 
requiring  seizin?  2.  Does  the  reason  exist  in  this  state.  3.  If  it  does 
not,  is  the  maxim  applicable,  "cessante  ratione,  cessat  ipsa  lex,"  the 
Reason  ceasing,  the  law  itself  ceases? 

The  books  generally,  and  with  but  few  exceptions,  give  but  one  rea- 
son for  the  rule  making  seizin  indispensable  to  curtesy,  namely,  that 
as,  by  the  common  law,  livery  of  seizin  was  necessary  to  the  transfer 
of  a  freehold  estate  by  deed,  and  an  entry  necessary  to  perfect  the 
title  to  such  an  estate,  of  an  heir  or  devisee,  it  followed  that  unless  the 
wife,  or  the  husband  in  her  right,  was  actually  seized,  her  issue  could 
never,  as  her  heirs,  inherit  the  lands ;  for,  owing  to  the  want  of 
actual  seizin,  she  never  acquired  an  inheritable  estate.  But  unless  she 
had  an  estate  of  inheritance  there  could  be  no  curtesy,  as  it  was  in- 
dispensable to  the  existence  of  curtesy  that  the  mother  be  seized  of  an 
estate  which  might  descend  to  her  heirs,  and  "the  tenancy  by  curtesy 
is  an  excrescence  out  of  the  inheritance."  3  Bac.  Abr.  11  (Bouvier's 
edition). 

Thus,  Littleton  says  (section  52) :  "And  memorandum  that,  in  ev- 
ery case  where  a  man  taketh  a  wife  seized  of  such  an  estate  of  tene- 
ments, etc.,  as  the  issue  which  he  hath  by  his  wife,  may  by  possibility 
inherit  the  same  tenements  of  such  an  estate  as  the  wife  hath,  as  heire 
to  the  wife;  in  this  case,  after  the  decease  of  the  wife,  he  shall  have 
tlie  same  tenements  by  the  curtesie  of  England,  but  otherwise  not." 

Commenting  on  the  above  expression,  "as  heire  to  the  wife,"  Coke 
says :  "This  doth  implie  a  secret  of  law,  for  except  the  wife  be  actually 
seized  the  heire  shall  not  (as  hath  been  said)  make  himself  heire  to 
the  wife ;  and  this  is  the  reason  that  a  man  shall  not  be  tenant  by  tlie 
curtesie  of  a  seisin  in  law."    Co.  Lit.  40a. 

And,  in  illustration  of  the  law  that  the  wife  must  have  an  estate  in- 
heritable by  her  issue,  the  following  case  is  put:  "If  lands  be  given 
to  a  woman  and  to  the  heires  males  of  her  body,  she  taketh  a  hus- 
band and  hath  issue  a  daughter  and  dieth,  he  shall  not  be  tenant  by 
the  curtesie ;  because  the  daughter  by  no  possibility  could  inherit  the 
mother's  estate  in  the  land;  and  therefore  where  Littleton  saith,  issue 


590  DERIVATIVE  TITLES  (Part  2 

by  his  wife  male  or  female,  it  is  to  be  understood,  which  by  possi- 
bility may  inherit  as  heir  tO'  her  mother  of  such  estate."     Co.  Lit.  29b. 

Blackstone  puts  the  same  case,  and  adds :  "And  this  seems  to  be  the 
principal  reason  why  the  husband  can  not  be  tenant  by  the  curtesy  of^ 
any  lands  of  which  the  wife  was  not  actually  seized,  because,  in  order 
1:0  enl;itle  himself  to  such  an  estate,  he  must  have  begotten  issue  that 
may  be  heir  to  the  wife ;  but  no  one,  by  the  standing  rule  of  law,  can_ 
be  heir  to  the  ancestor  of  any  land,  whereof  the  ancestor  was  not.  actuj_ 
alTy  seized."    2  Bla.  Com.  128. 

In  a  subsequent  passage,  he  suggests  an  additional  reason.  It  is 
as  follows :  "A  seizin  in  law  of  the  husband  will  be  as  effectual  as  a 
seizin  in  deed,  in  order  to  render  the  wife  dowable :  for  it  is  not  in 
the  wife's  power  to  bring  the  husband's  title  to  an  actual  seizin,  as 
it  is  in  the  husband's  power  to  do  with  regard  to  the  wife's  lands ; 
which  is  one  reason  why  he  shall  not  be  tenant  by  the  curtesy,  but  of 
such  lands  whereof  the  wife,  or  he  himself  in  her  right,  was  actually 
seized  in  deed."  2  Bla.  Com.  132.  The  only  authority  referred  to  by 
Blackstone,  in  support  of  the  above,  is  Co.  Lit.  31,  where  the  diversity 
between  dower  and  curtesy  is  noticed,  but  no  such  reason  as  Black- 
stone gives  for  denying  curtesy  is  stated,  although  it  may  be  inferred. 

What  Coke  says  is  as  follows :  "For  a  woman  shall  be  endowed  of  a 
seizin  in  law.  As  where  lands  or  tenements  descend  to  the  husband, 
before  entry  he  hath  but  a  seizin  in  law,  and  yet  the  wife  shall  be  en- 
dowed, albeit  it  be  not  reduced  to  an  actual  possession,  for  it  lieth  not 
in  the  power  of  the  wife  to  bring  it  to  an  actual  seizin,  as  the  husband 
may  do  of  his  wife's  land  when  he  is  to  be  tenant  by  tlie  curtesy,  which 
is  worthy  the  observation." 

As  before  observed,  it  is  only  by  inference  that  this  passage  sup- 
ports Blackstone's  remark.  It  is  to  some  extent  fortified,  however, 
by  the  following  language  in  7  Viner's  Abr.  149,  namely :  "Feme  shall 
be  endowed  of  a  seizin  and  possession  in  law,  without  seizin  in  deed, 
quod  nota;  for  otherwise  it  is  of  tenant  by  the  curtesy,  and  the  rea- 
son seems  to  be,  inasmuch  as  the  baron  may  enter  in  jure  uxoris,  but 
the  feme  can  not  compel  her  baron  to  enter  into  his  own  land." 

On  the  other  hand,  the  following  extract  from  3  Bac.  Abr.  12,  is 
certainly  opposed  to  the  existence  of  this  reason,  as  the  idea  is  re- 
jected that  the  allowing  or  disallowing  curtesy  is  dependent  on  the 
ability  or  inability,  industry  or  negligence,  of  the  husband.  "But  now 
of  such  inheritances,  whereof  there  can  not  possibly  be  a  seizin  in  fact, 
a  seizin  in  law  is  sufficient ;  and  therefore  if  a  man  seized  of  an  advow- 
son  or  rent  in  fee,  hath  issue  a  daughter,  who  is  married  and  hath 
issue,  and  he  dieth  seized,  and  the  wife  dieth  likewise  before  the  rent 
becomes  due,  or  the  church  becomes  void,  this  seizin  in  law  in  the  wife 
shall  be  sufficient  to  entitle  her  husband  to  be  tenant  by  the  curtesy, 
because,  say  the  books,  he  could  not  possibly  attain  any  other  seizin, 
as  indeed  he  could  not ;  and  then  it  would  be  unreasonable  he  should 
suffer  for  what  no  industry  of  his  could  prevent.    But  the  true  reason 


Ch.  5)  ESTATES  CREATED  591 

is,  that  the  wife  hath  these  inheritances  which  lie  in  grant,  and  not  in 
hvery,  when  the  right  first  descends  upon  her;  for  she  hath  a  thing 
in  grant  when  she  hath  a  right  to  it,  and  nobody  else  interposes  to 
prevent  it." 

In  Davis  v.  Mason,  1  Pet.  507,  7  L.  Ed.  239,  the  foundation  of  the 
rule  is  thus  stated  in  the  opinion  of  the  court:  "As  it  relates  to  the 
tenure  by  curtesy,  the  necessity  of  entry  grew  out  of  the  rule,  which 
invariably  existed,  that  an  entry  must  be  made  in  order  to  vest  a  free- 
hold (Co.  Lit.  51),  and  out  of  that  member  of  the  definition  of  the 
tenure  by  curtesy  which  requires  that  it  should  be  inheritable  by  the 
issue.  When  a  descent  was  cast,  the  entry  of  the  mother  was  neces- 
sary, or  the  heir  made  title  direct  from  the  grandfather,  or  other  per- 
son last  seized." 

A  careful  examination  of  the  authorities  makes  it  quite  apparent  that 
this  is  a  correct  statement  of  the  principal,  if  not  the  only,  reason  of 
the  rule.  No  other  reason  is  found  in  the  books,  except  the  suggestion 
before  referred  to,  that  curtesy  is  refused  where  there  was  no  actual 
seizin,  because  the  husband  might,  by  diligence,  have  obtained  such 
seizin.    But  this  idea,  as  we  have  seen,  is  not  universally  admitted. 

Our  next  inquiry  is,  Do  thej^e  reasons,  or  either  of  tliem^_exist_in^        ^^ 
Ohio? 

That  livery  of  seizin  has  never  been  essential,  in  Ohio,  to  the  crea- 
tion of  a  freehold  estate,  nor  an  entry  necessary  to  perfect  the  title 
of  an  heir  or  devisee,  is  well  known  to  every  lawyer.  The  most  com- 
mon instrument  of  conveyance  is  a  deed^ofbargain_arads_ale,.  which, 
without  the  aid  of  a  statute  of  uses,  transfers  both  the  legal  and  equita- 
ble estate.  Nay,  further,  a  mere  deed  of  quitclaim,  or  release,  is  suffi- 
cient, even  where  the  releasee  has  no  prior  interest  in  the  land.  But 
our  departure  from  the  English  law  does  not  stop  here ;  for  an  adverse 
possession  does  not  prevent  the  transfer  of  title,  either  by  deed,  de^ 
scent,  or  devise.  Whatever  title  is  held  by  the  grantor,  ancestor,  or 
testator,  may  be  thus  transferred,  notwithstanding  the  lands  are  ad- 
versely held  by  another.  Holt  v.  Hemphill,  3  Ohio,  232 ;  Helfenstine 
V.  Garrard,  7  Ohio,  275,  pt.  1,  Hall  v.  Ashby,  9  Ohio,  96,  34  Am.  Dec. 
424.  It  might  seem,  from  what  was  said  in  Holt  v.  Hemphill,  that 
an  adverse  possession  would  be  fatal  to  a  deed ;  but  that  such  posses- 
sion in  no  wise  affects  it,  was  expressly  decided  in  Hall  v.  Ashby. 

As,  then,  a  freehold  estate  is  created  in  Oh^o  without  entry,  it  is 
manifest  that  the  principal,  if  not  the  only  reason,  of  the  rule  requir- 
ing actual  seizin  to  give  curtesy  does  not  exist  in  this  state. 

But  allowing  that  the  minor  reason  before  stated  did  exist  in  Eng- 
land, does  it  exist  here?  Ought  a  husband  to  be  denied  curtesy  in 
Ohio  upon  the  ground  that  he  might  have  entered  upon  the  land  dur- 
ing coverture,  and  that  if  he  did  not,  he  was  guilty  of  a  fault  that  de- 
servedly bars  his  right?  There  may  have  been  much  reason  for  say- 
ing so  in  England,  when  the  rule  requiring  seizin  was  established ; 
for,  by  the  failure  of  the  husband  to  enter,  the  wife  and  her  issue 


y 


592  DERIVATIVE  TITLES  (Part  2 

might  lose  tlie  estate,  which  it  was  plainly  his  duty  to  prevent,  if  pos- 
sible. j.)Ut  in  Ohio  her  title  is  as  perfect  before  as  after  entry;  and. 
in  general,  it  would  be  nothing  less  than  absurd  to  make  a  man's  right 
depend  upon  whether  he  had  gone  for  a  moment  upon  the  land  and 
"broken  a  twig,"  or  "turned  a  sod,"  or  "read  a  deed."  There  is,  how- 
ever, one  case,  and  perhaps  but  one,  in  which,  if  curtesy  exists,  the 
heirs  of  the  wife  might  be  prejudiced  by  a  failure  of  the  husband  to 
obtain  possession,  namely,  when  by  such  failure  the  bar  of  the  statute 
of  Hnu'tations  becomes  perfect  against  them.  But  this  would  probably 
occur  so  rarely  as  to  furnish  but  a  slight  foundation  for  the  rule  we 
are  considering.  Nor  is  it  the  only  case  in  which  a  remainderman,  or 
reversioner,  may  be  powerless  to  preserve  his  estate.  If  A,  tlie  owner 
in  fee  of  lands  in  the  adverse  possession  of  B,  devise  or  convey  them 
to  C  for  life,  with  remainder  to  D,  it  is  manifest  that,  as  the  statute 
of  linn'tations  began  to  run  against  A,  and  therefore  continues  to  run 
against  C  and  D,  the  latter  may  lose  his  estate  through  the  neglect 
or  failure  of  C  to  obtain  possession.  So,  when  the  statute  begins  to 
run  against  a  feme  sole,  and  she  afterward  marry,  she  may  lose  her 
land  by  the  nesflect  or  inability  of  her  husband  to  recover  it. 

These  possible  cases  of  hardship  it  is  the  province  of  legislation  to 
guard  against,  and  not  of  the  courts.  Were  we  to  say  that  there  shall 
be  no  curtesy  where  the  possession  was  held  adversely  during  the  cov- 
erture, because  to  give  it  m.ight,  by  possibility,  result  in  the  loss  of  the 
estate  to  the  heir,  it  is  very  probable  that,  in  guarding  against  hardships 
on  the  one  side,  we  would  open  the  door  to  quite  as  much,  or  more, 
hardship  on  the  other.  For  it  is  very  far  from  being  true  that  the 
failure  to  obtain  possession  during  the  coverture,  is  always  attributable 
to  the  husband's  neglect.  He  may  have  freely  spent  his  time,  labor, 
and  money  to  recover  the  land,  and  yet,  without  any  fault  of  his,  be 
unable  to  succeed  in  the  lifetime  of  the  wife.  Decide  as  we  may,  and 
doubtless  there  will  be  room  for  cases  of  hardship  to  arise;  but,  as  was 
truly  said  by  Duncan,  J.,  in  Stoolfoos  v.  Jenkins,  8  Serg.  &  R.  (Pa.) 
173:  "Courts  can  not  usurp  legislative  functions,  or  new-model  the_ 
law  according  to  their  own  ideas  of  natural  justice,  or  redress  hard- 
ships in  each  particular  instance."  And  it  is  never  to  be  forgotten  that 
all  wise  laws  are  framed  with  a  regard  to  what  is  likely  to  occur,  rather 
than  to  that  which  is  only  possible. 

On  the  whole,  the  conclusion  to  which  we  have  arrived  is,  that  nei- 
ther of  the  reasons  given  for  making  actual  seizin  indispensable  to 
curtesy,  affords  any  sufificient  foundation  for  the  rule  in  Ohio.  It  re- 
mains to  be  considered  whether  the  reason  of  the  rule  having  ceased, 
or  rather  never  having  existed  in  this  state,  the  rule  itself  exists  here. 
Tenancy  by  the  curtesy  has  always  been  known  to  our  law  and  is  recog- 
nized by  our  statutes.  We  can  not  deny  its  existence ;  but  may  we  not 
deny  the  necessity  of  a  requisite,  that  properly  enough  formed  a  place 
in  the  common  law,  but  has  no  reason  to  support  it  in  our  jurispru- 
dence?   We  are  materially  aided  in  this  inquiry  by  the  American  deci- 


Ch.  5)  ESTATES   CREATED  593 

5ions  upon  the  subject  of  curtesy.    These  decisions  may  be  reduced  into 
three  classes : 

1.  Those  in  which  there  being  no  adverse  possession,  the  husband 
and  wife  were  held  to  be  constructively  seized  in  deed,  and  such  con- 
structive seizin  deemed  sufficient. 

2.  Those  in  which  there  was  an  adverse  possession ;  but  a  recover}- 
in  ejectment,  on  the  demise  of  the  husband  and  wife  or  the  husband 
alone,  took  place  during  the  coverture ;  and  in  which  there  was  held  to 
be  curtesy,  although  no  actual  possession  followed  the  recovery. 

3.  Those  in  which  an  adverse  possession  was  decided  to  be  no  bar 
to  curtesy. 

Of  the  first  class,  Jackson  v.  SelUck,  8  Johns.  (N.  Y.)  262.  and  Davis 
v.  Mason,  1  Pet.  506,  7  L.  Ed.  239,  may  properly,  perhaps,  be  called 
the  leading  cases.  .  Many  others  might  be  cited,  for  the  general  current 
of  American  authority  certainly  admits  curtesy  in  this  class  of  cases. 

Of  the  second  class,  Ellsworth  v.  Cook,  8  Paige  (N.  Y.)  643,  is  the 
leading  case. 

To  the  third  class,  belong  Bush  v.  Bradley,  4  Day  (Conn.)  298,  ap- 
proved in  Chew  v.  Comm'rs  of  Southward,  5  Rawle  (Pa.)  160,  etc. 

Now,  a  careful  scrutiny  of  these  cases  will  show  that,  in  nearly  all 
of  them,  the  decisions  were  arrived  at  by  an  application  of  the  ma.xim 
"cessante  ratione,  cessat  ipsa  lex."  It  was  so  expressly  declared  in 
Davis  V.  Mason.  That  case  respected  lands  in  Kentucky.  After  giving, 
in  the  passage  hereinbefore  quoted,  the  reason  of  the  rule  requiring 
seizin,  the  judge,  who  delivered  the  opinion  of  the  court,  went  on  to 
say:  "But  in  Kentucky,  we  understand,  the  livery  of  seizin  is  un- 
heard of.  Freeholds  are  acquired  by  patent,  or  by  deed,  or  by  descent, 
without  any  further  ceremonies ;  and  in  tracing  pedigree,  the  proof  of 
entry,  as  successive  descents  are  cast,  is  never  considered  as  necessary 
to  a  recovery,  or  in  any  mode  affecting  the  course  of  descent.  If  a 
right  of  entry  therefore  exists,  it  ought  by  analogy  to  be  sufficient  to 
sustain  'the  tenure  acquired  by  the  husband,  where  no  adverse  posses- 
sion exists ;  as  it  is  laid  down  in  the  books  relative  to  a  seizin  in  law, 
'he  has  the  thing,  if  he  has  a  right  to  have  it.'  Such  was  not  the  an- 
cient law ;  but  the  reason  of  it  has  ceased.  It  has  been  shown,  that  in 
the  most  remote  periods  exceptions  had  been  introduced  on  the  same 
ground ;  and  in  the  most  modern,  the  rule  has  been  relaxed  upon  the 
same  consideration.  We  ought  not  to  be  behind  the  British  courts  in 
the  liberality  of  our  views,  on  the  subject  of  this  tenure." 

So  in  Jackson  v.  Sellick  the  court  said:    "We  must  take  the  rule  -Ar 

(requiring  seizin)  with  such  a  construction  as  the  peculiar  state  of  new 
lands  in  this  country  require." 

Both  these  cases  seem  to  proceed  on  the  ground  that  the  wife,  though 

not  actually,  was  yet  constructively  seized  in  deed.    Hence  the  allusion, 

in.  each  case,  to  the  fact  that  there  was  no  adverse  possession  to  rebut 

the  presumption.     The  question  whether  an  adverse  possession  would 

Aig.Peop.— 38 


594  DERIVATIVE  TITLES  (Part  2 

be  fatal  to  the  claim  to  curtesy  was  not  presented.  The  cases  in  effect 
decide,  not  that  seizin  in  deed  is  indispensable,  but  that,  if  there  must, 

^  be  seizin,  a  constructive  seizin  is  sufficient.     But  in  Bush  v.  Bradley, 

the  question  was  directly  raised.  The  premises,  during  the  whole  pe- 
riod, of  the  coverture,  were  adversely  held  by  a  third  person.  Yet  the 
husband  was  adjudged  to  be  tenant  by  the  curtesy.  The  real  estate 
law  of  Connecticut  was,  in  all  respects  material  to  the  present  inquiry, 
the  same  as  that  of  Ohio;  and  the  court  held  that,  as  the  reason  of  the 
rule  requiring  seizin  did  not  exist,  seizin  was  unnecessary,  and  that  the 
symmetr}^  of  the  law  required  this  decision.  To  the  same  effect  is  the 
following  language  of  the  court  in  Stoolfoos  v.  Jenkins,  8  S.  &  R.  175  : 
"The  actual  seizin  of  the  husband  during  coverture  is  necessary  to  enti- 
tle him,  as  tenant  by  the  curtesy,  by  the  common  law ;  though  such  ac- 
tual seizin  by  the  husband  is  not  necessary  by  our  law,  if  there  be  a 
potential  seizin,  or  right  of  seizin.  This  has  been  decided  to  be  suffi- 
cient in  this  state."  This  ruling,  as  well  as  the  case  of  Bush  v.  Bradley, 
was  approved  in  the  case  in  5  Rawle,  160,  before  cited,  the  court  hold- 
ing that  it  was  sufficient  to  entitle  the  husband  to  curtesy,  that  the  wife 
owned  the  land  and  had  a  right  "to  demand  and  recover  the  immediate 
possession  thereof."  ^^ 

In  the  light  of  these  decisions,  and  the  considerations  upon  which 
they  rest,  we  can  hardly  err  in  holding  that  the  reason,  or  reasons,  of 
the  rule  requiring  seizin  in  deed,  having  no  existence  in  Ohio,  the  rule 

^  itself  does  not  exist.    And,  certainly,  tlie  symmetry  of  our  law  demands 

this.  It  would  be  strange  indeed,  and  only  lead  to  confusion  and  per- 
plexity, if,  while  every  other  tenancy  may  be  created  in  this  state  with- 
out entry,  or  regard  to  the  fact  of  adverse  possession,  a  tenancy  by  the 
curtesy  could  not.  Nor  does  a  rule  strongly  commend  itself  to  the  good 
sense  of  men  that  makes  the  existence  of  the  estate  depend  upon  an 
almost,  or  quite,  imaginary  distinction  between  seizin  in  law  and  con- 
structive seizin  in  deed.  The  constructive  seizin  relied  on  in  Jackson 
V.  Sellick,  Davis  v.  Mason,  and  Ellsworth  v.  Cook,  was  in  substance 
nothing  but  a  seizin  in  law.  It  is  a  mere  fiction  to  say  that  a  man  is 
actually  possessed  of  that  v\'hich  is  in  no  one's  possession,  and  it  is 
plainly  untrue  to  say  so  when  the  thing  is  in  the  possession  of  another. 
The  reasoning  of  the  courts  in  all  these  cases,  if  carried  to  its  legiti- 
mate result,  makes  seizin  in  deed,  either  actual  or  constructive,  wholly 
unnecessary ;  and  this  result  is  not  in  conflict  with  the  principles  of  the 
common  law.  For  even  at  common  law,  a  seizin  in  law  is  sufficient  to 
give  curtesy  in  all  inheritances  created  without  entry.  3  Bac.  Abr.  12 ; 
Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  98,  15  Am.  Dec.  433;  Ellsworth 
V.  Cook,  8  Paige  (N.  Y.)  643.  It  is  therefore  a  mere  application  of  a 
common-law  principle  to  say  that  a  seizin  in  law  is  sufficient  in  Ohio, 
where  in  no  case  is  an  entry  necessary  to  create  an  inheritance.  In  the 
case  before  us,  Mrs.  Borland  was  seized  in  law,  for  "seizin  in  law  is  a 
right  to  lands  and  tenements,  though  the  owner  is  by  wrong  disseized 

IS  Buchanan  v.  Duncan,  40  Pa.  82  (1S61),  ace. 


Ch.  5)  ESTATES   CREATED  595 

of  them."  6  Jacob's  Law  Die.  41.  Her  husband,  there  being  issue 
born,  became  tenant  by  the  curtesy,  and  as  he  was  yet  in  life  when  the 
ejectment  was  brought  by  her  heirs,  the  common  pleas  did  right  to 
nonsuit  them. 

The  decision  of  this  case  also  decides  the  case  of  Doe  ex  dem.  Hun- 
ter et  al.  V.  Durrell ;  the  only  difference  in  tlae  cases  being  that  there  was 
an  adverse  possession  in  the  one  and  not  in  the  other.  ^"^ 


J^J^  ^        WATSON  V.  WATSON.      -  - 

(Supreme  Court  of  Errors  of  Connecticut,  1839.     13  Conn.  83.) 

This  was  an  action  of  ejectment;  tried  at  Hartford,  September  term, 
1838,  before  Bissell,  J. 

In  the  life-time  of  Ann  Watson,  and  until  her  death,  the  demanded 
premises  were  owned  by  her  in  fee;  and  the  plaintiffs  are  her  children 
and  heirs  at  law,  by  John  Watson,  to  whom  she  was  lawfully  married, 
and  who  is  still  living.  The  plaintiffs  claimed,  that  John  Watson  had 
not  an  estate  by  the  curtesy  in  the  premises ;  and  to  establish  this  point, 
they  offered  in  evidence  the  following  writing,  under  his  hand  and  seal, 
dated  the  23rd  of  February,  1837,  after  the  death  of  his  wife:  "Know 
all  men,  by  these  presents,  that  I,  John  Watson,  do  hereby  publish,  de- 
clare and  make  known,  to  all  whom  it  may  concern,  and  especially  the 
heirs  and  children  of  my  late  wife,  Ann  Watson,  that  I  have  not,  at 
any  time  hitherto,  and  now  do  not  claim,  demand,  possess,  or  in  any 
manner  or  to  any  extent  whatever,  have,  or  pretend  to  have,  any  right, 
title  or  interest  in  three  pieces  of  land  (describing  the  premises)  but  do 
now  fully,  absolutely  and  without  any  reservation,  disclaim  and  reject 
any  and  all  right,  title  and  interest  in  the  same,  which  I  might  or  could 
have  had,  by  operation  of  law  or  otherwise,  by  reason  of  my  surviving 
my  said  wife,  or  any  title  to  said  premises  which  she  had  during  her 

16  See  De  Grey  v.  Richardson,  3  Atk.  469  (1747). 

Lands  are  conveyed  to  A.  for  life,  remainder  in  fee  to  B.,  a  woman.  B.  mar- 
ries, issue  is  born,  and  B.  dies,  all  during  tJie  lifetime  of  A.  Is  B.'s  husband  en- 
titled to  an  estate  by  the  curtesy?  See  Todd  v.  Oviatt,  58  Conn.  174,  20  Atl. 
440,  7  L.  R.  A.  693  (1SS9) ;  Redus  v.  Hayden,  43  Miss.  614  (1870) ;  Dozier  v. 
Toalson,  180  Mo.  546,  79  S.  W.  420,  103  Am.  St.  Rep.  586  (1904) ;  Ferguson  v. 
Tweedy,  43  N.  Y.  543  (1871) ;    Watkins  v.  Thornton,  11  Ohio  St.  367  (1860). 

As  to  the  rights  of  the  husband  of  a  trustee  or  cestui  que  trust,  see  Kenne- 
son's  Cases  on  Trusts,  223  et  seq. ;  Ogden  v.  Ogden,  60  Ark.  70,  28  S.  W.  798, 
46  Am.  St.  Rep.  151  (1894) ;   Carson  v.  Fuhs,  131  Pa.  256,  IS  Atl.  1017  (1890). 

Lands  are  conveyed  to  a  woman  and  the  lieirs  of  her  body ;  she  marries, 
has  issue  which  dies,  and  then  she  dies  mthout  issue,  leaving  her  husband  sur- 
viving.    Is  her  husband  entitled  to  curtesy?     See  I'aine's  Case,  8  Co.  34  (1587). 

An  estate  is  devised  to  a  woman  in  fee,  with  limitation  over,  in  case  she  dies 
under  the  age  of  twenty-one,  without  issue ;  she  marries,  has  issue  which  dies, 
and  then  she  dies  under  twenty-one,  leaving  her  husband  surviving.  Is  lie 
entitled  to  curtesy?  See  Buckworth  v.  Thirkell,  3  Bos.  &  P.  652,  note  (1785). 
See,  also,  Buchannan  v.  Sheffer.  2  Yeates  (Pa.)  374  (1798) ;  Weller  v.  Wener, 
28  Barb.  (N.  Y.)  588  (1858) ;  Hatfield  v.  Sneden,  54  N.  Y.  280  (1873) ;  Withers 
V.  Jenkins,  14  S.  C.  597  (1880). 


596  DERIVATIVE  TITLES  (Part  2 

life."  This  writing  was  signed  and  sealed  by  John  Watson,  attested  by- 
two  witnesses,  acknowledged  before  a  justice  of  the  peace,  and  recorded 
in  the  town  records.  It  was  admitted  by  the  plaintiffs,  that  John  Wat- 
son was  tenant  by  the  curtesy  of  the  demanded  premises,  and  that  they 
could  not  recover  in  this  action,  unless  by  operation  of  this  writing,  he 
had  no  such  estate.    The  defendant  objected  to  the  admission  of  it  in 


evidence  to  the  jury;  and  the  court  rejected  it;  and  a  verdict  passed, 
for  the  defendant.     The  plaintiffs  thereupon  moved  for  a  new  trial. 

Waite,  J.  The  object  of  a  disclaimer,  is,  to  prevent  an  estate  pass- 
ing from  the  grantor  to  the  grantee.  It  is  a  formal  mode  of  expressing 
the  grantee's  dissent  to  the  conveyance  before  the  title  has  become 
vested  in  him.  In  some  cases,  it  may  be  highly  proper;  as  where  a 
deed  is  made  conveying  an  estate  to  one  for  life,  with  a  remainder  to 
another  in  fee.  Here,  in  the  absence  of  all  evidence  to  the  contrary,  the 
law  would  presume  the  assent  of  the  grantee  in  remainder,  upon  de- 
livery of  the  deed  to  the  grantee  for  life,  for  the  benefit  of  both.  But 
if  the  remainder-man  chooses  not  to  take  the  estate,  he  may  disclaim, 
and  thereby  remove  all  presumption  of  assent.  So,  where  a  deed  is 
executed  to  several  persons,  and  delivered  to  one  for  the  benefit  of  all, 
if  one  dissents,  he  may  disclaim,  and  furnish  evidence  that  his  share 
still  remains  in  the  grantor.  Treadwell  et  al.  v.  Bulkley  et  al.,  4  Day, 
395. 

But  if  the  grantee  once  assents,  and  the  title  thereby  becomes  vested 
in  him,  he  cannot,  by  any  disclaimer,  revest  the  estate  in  the  grantor. 
For  if  he  could,  the  disclaimer  would  have  the  effect  of  a  deed,  which_ 
it  cannot  have;  the  object  of  the  latter  being  to  transfer  property,  of  ^ 
the  former  to  prevent  a  transfer. 

But  in  a  case  of  descent,  the  heir  cannot,  by  any  disclaimer,  prevent 
the  estate  from  passing  to  him.  It  vests  in  him  immediately  upon  the 
death  of  the  ancestor;  and  no  act  of  his  is  required  to  perfect  his  title. 
He  cannot,  by  any  act,  cause  the  estate  to  remain  in  the  ancestor ;  for 
the  latter  is  incapable  of  holding  it,  after  his  death.  Nor  can  he,  by  a 
disclaimer,  transfer  the  estate  to  any  other  person,  as  tlie  heir  of  the 
ancestor :  for,  as  has  already  been  observed,  the  object  of  a  disclaimer 
is  not  to  convey,  but  to  prevent  a  conveyance.  He  is,  therefore,  in  the 
same  situation,  upon  the  death  of  the  ancestor,  as  a  purchaser,  who  has 
assented  to  the  conveyance.  In  both  cases,  a  transfer  can  only  be  made, 
by  some  instrument  adapted  to  the  conveyance  of  real  estate. 

A  devisee,  however,  stands  in  the  same  situation  as  a  purchaser.  If 
he  dissents,  the  estate  passes  to  the  heir,  in  the  same  manner  as  if  no 
will  had  been  made.  It  is  entirely  optional  with  him  to  take  or  refuse 
the  estate  devised.    Townson  v.  Tickell  et  al.,  3  Barn.  &  Aid.  31. 

In  the  present  case,  the  disclaimer  was  made  by  one  who  was  entitled 
to  the  property  as  tenant  by  the  curtesy.  Is  he,  in  this  respect,  like  a 
grantee,  or  an,  heir  ?  This  species  of  estate  has  sometimes  been  classed 
with  those  acquired  by  purchase.  But  it  is  rather  an  estate  thrown 
upon  tlie  tenant  by  operation  of  law.    Co.  Litt.  18b.    It  partakes  more 


Ch.  5)  ESTATES  CREATED  597 

of  the  character  of  an  estate  acquired  by  descent  than  by  purchase. 
Immediately  upon  the  death  of  the  wife,  the  estate  vests  in  him.  Like 
the  heir ,"Tie  cannot,  by  refusing  to  take  it,  cause  it  to  remain  in  the 
wifej_  nor  can  he,  by  a  disclaimer,  transfer  it  to  others.  The  estate 
thus  vested  in  him,  becomes  immediately  liable  for  his  debts ;  and  he 
cannot,  by  any  refusal  to  take  the  property,  defeat  the  claims  of  his 
creditors. 

The  disclaimer  offered  in  evidence  could  have  no  effect  in  shewing 
a  title  in  the  plaintiffs;  and  was  properly  rejected  by  the  court. 

We  are,  therefore,  satisfied,  that  no  new  trial  should  be  granted. 

In  this  opinion  the  other  Judges  concurred. 

New  trial  not  to  be  granted. ^^ 

(Q  Wife's  Interest  in  Husband's  Realty 
LITTLETON'S  TENURES. 

Tenant  in  dower  is,  where  a  man  is  seised  of  certain  lands  or  tene-        .  '  c 

ments  in  fee  simple,  fee  tail  general,  or  as  heir  in  special  tail,  and  taketh  //        y 

a  wife,  and  dieth,  the  wife  after  the  decease  of  her  husband  shall  be        /  ^  .^-C*^^*^ 
endowed  of  the  third  part  of  such  lands  and  tenements  as  were  her  €C~ ^ 

husband's  at  any  trme  during  the  coverture,  to  have  and  to  hold  to  / 

the  same  wife  in  severalty  by  metes  and  bounds  for  term  of  her  life, 
whether  she  hath  issue  by  her  husband  or  no,  and  of  what  age  soever 
the  wife  be,  so  as  she  be  past  the  age  of  nine  years  at  the  time  of  the 
death  of  her  husband,  (for  she  must  be  above  nine  years  old  at  the 
time  of  the  decease  of  her  husband,)  otherwise  she  shall  not  be  en- 
dowed. 

Section  36. 


BROUGHTON  v.  RANDALL. 

(Court  of  Queen's  Bench,  1596.     Cro.  Eliz.  502.) 

Error  of  a  judgment  in  Wales  in  dower.  *  *  * 
Note  here,  the  title  of  the  feme  to  recover  dower  was,  that  the  fa- 
ther and  son  were  joint-tenants  to  them  and  the  heirs  of  the  son ;  and 
they  were  both  hanged  in  one  cart ;.  but  because  the  son  (as  was  deposed 
by  witnesses)  survived,  as  appeared  by  some  tokens,  viz.,  his  shaking 
his  legs,  his  feme  thereupon  demanded  dower.  And  upon  this  issue 
nunques  seisie  dower,  this  matter  was  found  for  the  demandant.*" 

17  See  In  re  Starbuck's  Estate,  137  App.  Div.  866,  122  N.  Y.  Supp.  584  (1910; ; 
Id.,  201  N.  Y.  531,  94  N.  E.  109S  (1911) ;    Crenshaw  v.  Moore,  infra,  p.  616. 

"Curtesy  is  abolished  or  modified,  in  many  states,  by  statutes  which  must  be 
consulted."     4  Kent's  Comm.  *29,  note. 

ISA  part  of  the  report  relating  to  another  point  is  omitted. 


598  DERIVATIVE  TITLES  (Part  2 

HOLEROOK  V.  FINNEY. 
(Supreme  Judicial  Court  of  Massachusetts,  ISOS.     4  Mass.  5G6,  3  Am.  Dec.  243.) 

This  was  an  action  for  dower  in  several  parcels  of  land  which  Han- 
nah Holbrook  demands  on  the  seizin  of  her  deceased  husband  Ezra 
Finney  during  the  coverture. 

The  cause  came  before  the  court  on  a  case  stated  by  the  parties,  in 
^"-^"-^^  which  it  is  agreed  that  John  Finney,  the  father  of  Ezra  and  of  three 
other  sons,  was  seized  of  the  premises  in  fee,  and  on  the  13th  of 
Alarch,  1786,  by  his  deed  of  that  date,  in  consideration  of  £400.  con- 
fj ^^^^.  veyed  the  premises  with  other  parcels  of  land  to  his  said  four  sons  in 

equal  proportion  in  fee  simple,  the  demandant  then  being  the  wife  of 
^  Ezra ;  that  immediately  and  by  a  deed  of  even  date  with  the  deed  from 

John,  the  four  sons  mortgaged  the  same  lands  to  their  father  in  fee, 
to  secure  to  him  the  payment  of  the  said  sum  of  i400.  with  interest, 
and  also  a  maintenance  during  his  life;  that  these  deeds  were  duly 
acknowledged  on  the  same  day,  and  registered  the  day  after;  that  in 
December  in  the  same  year^zra,  the  husband  of  the  demandant,  died; 
that  in  1787  the  mortgagee  foreclosed  the  mortgage,,  the  conditions 
thereof  having  been  broken;  that  in  1790,  by  virtue  of  the  levying  of 
an  execution  to  satisfy  a  judgment  recovered  against  John  Finney  the 
father  by  the  present  tenant,  he  became  seized  in  fee  of  the  premises 
described  in  the  writ;  and  that  the  execution  of  the  said  deeds  was  in 
pursuance  of  a  previous  agreement  to  the  same  effect  made  between 
the  parties. 

Upon  these  facts  it  was  submitted  to  the  court  whether  the  demand- 
ant was  entitled  to  recover  her  dower. 

Parsons,  C.  J.  [After  reciting  the  substance  of  the  case  as  agreed 
by  the  parties:]  The  question  before  the  court  upon  these  facts,  is 
whether  Ezra  Finney  the  husband  was,  during  the  coverture,  so  seized 
of  the  premises,  that  the  demandant  has  a  right  to  her  dower.  He  was 
not  so  seized,  unless  from  the  operation  of  tlie  deed  from  his  fatlier 
to  himself  and  his  three  brothers. 

The  tenant  has  made  two  objections.  1.  That  this  conveyance  was 
of  an  estate  to  jointenants,  of  which  the  demandant's  husband  was  not 
the  survivor.  2.  That  her  husband  had  that  instantaneous  seizin  only, 
which  will  not  entitle  her  to  dower. 

It  is  settled  that  if  an  estate  be  devised  to  two  or  more  equally  to  be 
divided,  they  are  tenants  in  common.  The  same  construction  is  applied 
to  a  devise  to  two  or  more  share  and  share  alike.  Show.  Pari.  Cas.  210. 
Also  the  words  equally  to  be  divided  in  a  covenant  to  stand  seized,  or 
in  the  surrender  of  a  copy-hold,  or  in  a  deed  appointing  uses,  create  a 
tenanc)'  in  common.  2  Vent.  365,  6;  1  Salk.  391 ;  1  Wils.  341,  2.  This 
construction  has  been  adopted,  because  the  words  in  equal  shares,  or 
equally  to  be  divided,  import  a  division  in  futuro. 

The  words  in  this  deed  are  in  equal  proportion;  and  it  is  said  that 


Ch.  5)  ESTATES   CREATED  599 

they  do  not  imply  a  future  division,  but  are  applied  only  to  the  re- 
spective interests  in  the  thing  conveyed.  On  this  ground  they  must  be 
considered  as  wholly  inoperative ;  for  without  them,  the  grantees  would 
have  taken  an  equal  interest  in  the  lands  granted.  To  give  them  opera- 
tion, may  they  not  be  considered  as  equivalent  to  the  words  in  equal 
purparties  or  shares,  and  thus  contemplate  a  future  partition? 

But  it  is  not  necessary  now  to  decide  this  point,  for  by  the  statute 
of  1785,  c.  61,  passed  three  days  after  the  execution  of  these  deeds,  it 
is  enacted  that  all  estates  which  had  been,  or  which  should  be  aliened 
to  two  or  more  persons,  shall  be  deemed  to  be  tenancies  in  common, 
unless  it  be  manifestly  the  intent  of  the  alienor  that  they  should  be  held 
as  joint  estates ;  with  a  saving  to  the  survivor  of  any  estate  in  jointen- 
ancy  before  created  and  already  vested  in  him.  This  statute  has  a  re- 
trospective effect,  and  comprehends  this  conveyance ;  and  there  seems 
to  be  no  constitutional  objection  to  the  power  of  the  legislature  to  alter 
a  tenure,  by  substituting  another  tenure  more  beneficial  to  all  the  ten- 
ants. 

If  this  objection  had  been  pressed,  it  would  have  been  unnecessary 
to  consider  it,  as  the  statute  of  1783,  c.  52,  in  force  when  the  deeds 
were  executed,  although  repealed  by  the  last  cited  statute,  had  abolished 
the  principle  of  survivorship  among  jointenants,  and  had  enacted,  that 
on  the  death  of  a  jointenant,  the  joint  estate,  of  which  he  was  seized, 
should  descend  to  his  heirs.  In  consequence  of  these  provisions,  the 
wife  of  a  jointenant  is  dowable,  as  on  the  death  of  her  husband  there 
could  be  no  survivor,  who  would  be  in  by  a  title  paramount  to  her  claim 
of  dower.^® 

The  demandant  must  therefore  recover,  unless  the  second  objection 
should  prevail.  It  certainly  is  law  that  where  thfe  husband  is  seized  but 
for  an  instant,  of  this  seizin  his  wife  shall  not  be  endowed.  The  seizin 
for  an  instant  is  where  the  husband  by  the  same  act,  or  by  the  same 
conveyance,  by  which  he  acquires  the  seizin,  parts  with  it.  Thus  if 
tenant  for  life  make  a  feoffment  in  fee  his  wife  shall  not  be  endowed, 
for  by  making  the  same  feoffment  which  passed  the  fee,  he  acquired  a 
fee.  2  Cro.  615.  And  if  a  joint-tenant  make  a  feoffment,  his  wife  shall 
not  be  endowed,  for  by  the  feoffment  he  was  seized  of  a  several  estate 
but  for  an  instant,  which  he  acquired  and  parted  with  by  the  feoffment. 
So  if  a  feoffment  be  to  B.  and  his  heirs  to  the  use  of  C.  and  his  heirs, 
the  wife  of  B.  shall  not  be  endowed,  for  he  was  but  an  instrument;  and 
the  same  feoffment,  which  gave  him  the  seizin,  by  the  statute  of  uses 
transferred  it  to  C.  Nor  shall  the  wife  of  the  conusee  of  a  fine  be  en- 
dowed, when  by  the  same  fine  the  estate  is  rendered  back  to  the  conu- 
sor.   2  Co.  77 ,  a. 

Let  us  now  compare  the  present  conveyances  with  these  principles, 
for  the  previous  agreement  may  be  laid  out  of  the  case.    If  the  deeds 

19  Davis  V.  Logan,  9  Dana  (Ky.)  185  (1839),  ace.  State  statutes  not  uncom- 
monly have  abolished  the  survivorship  feature  of  joint  tenancies. 


600  DKuivATivii  TiTLKs  (Part  2 

pursue  it,  it  is  useless:  an-l  if  they  do  not,  we  myst  he  £^overried  wholly 
by  the  construction  of  the  deeds.  T]]*^  mortgage  back  to  the  father, 
from  the  terms  of  it,  is  of  even  date  with  the  conveyance  from  him^ 
They  are  therefore  to  be  considered  as  parts  of  the  same  contract,  and 
as  taking  elT['ect_a.t  the  same  instant,  The  conveyance  from  the  father 
took  effect  when  he  delivered  his  deed ;  the  mortgage  back  took  effect 
when  the  mortgage  deed  was  delivered  ;  but  both  being  of  even  date 
vyere  delivered  at  the  same  time.  The  mortgagors  were  therefore  seiz- 
ed but  for  an  instant,  taking  an  absolute  estate  in  fee,  and  instantane- 
ously rendering  back  a  conditional  estate  in  fee.  T^hese  two  instru- 
ments  must  therefore  be  considered  as  parts  of  one  and  the  same  coji- 
tract  between  the  parties ;  in  the  same  manner  as  a  deed  of  defeazance 
forms  with  the  deed  to  be  defeated  but  one  contract,  although  en- 
grossed on  several  sheets ;  and  no  interval  of  time  intervened  between 
the  taking,  and  the  rendering  back  of  the  fee. 

But  if  the  husband  had  continued  seized  for  any  portion  of  time^. 
however  short,  his  wife  would  have  been  entitled  to  dower;  as  if  the 
conveyance  back  had  been  made  posterior  in  point  of  time,  or  by  a 
deed  distinct  from  the  first  grant.  There  is  the  case  of  Nash  v.  Preston 
reported  in  Cro.  Car.  190,  illustrating  and  supporting  these  principles. 
In  that  case  J.  S.  seized  in  fee  bargains  and  sells  the  land  to  the  hus- 
band for  £120.  in  consideration  that  the  bargainee  shall  redemise  it  to 
the  bargainor  and  his  wife  for  twenty  years,  rendering  a  nominal  rent, 
with  a  condition  that  if  the  bargainor  at  the  end  of  twenty  years  paid 
back  the  £120.  the  bargain  and  sale  should  be  void.  The  bargainee  ac- 
cordingly redemised  it  and  dies.  His  wife  shall  have  dower  because 
the  land  by  the  bargain  and  sale  was  vested  in  the  husband.  But  it 
would  have  been  otherwise  if  the  land  was  in,  and  was  out  of  the  hus- 
band by  one  act.  In  the  case  at  bar,  the  execution  of  the  two  deeds, 
they  being  of  even  date,  w^as  done  at  the  same  instant,  and  constitutes 
but  one  act. 

The  demandant  therefore  cannot  support  her  claim,  as  her  husband 
was  never  so  seized  as  to  entitle  her  to  dower.  According  to  the  terms 
of  the  agreement  submitting  the  case  to  the  court,  the  demandant  must 
become  nonsuit.  ,  ir      / 

shoe:maker  v.  walker. 

(Supreme  Court  of  Pennsylvania,  1S14.    2  Serg,  &  E.  554.) 

Case  stated  for  the  opinion  of  the  Court.  By  the  last  will  and 
testament  of  Phcebe  Shoemaker,  deceased,  dated  the  2d  August,  1788, 
and  by  a  deed  of  trust  from  Benjamin  Shoemaker  and  Elizabeth  his 
wife,  to  John  Reynell,  bearing  date  the  31st  October,  A.  D.  1765, 
Charles  Shoemaker,  "was  vested  with,  and  entitled  to  the  remainder 
of  one-eighth  of  all  the  real  estate  in  the  said  deed  mentioned  after 


Ch.  5)  ESTATES   CREATED  601 

the  life  estate  thereby  given  to  his  mother,  EHzabeth  Shoemaker,  shall 
have  expired,"  &.c. 

On  the  4th  June,  1792,  Charles  Shoemaker,  by  deed  in  considera- 
tion of  a  debt  of  above  4,000  pounds  sterling  to  Hathrip  &  Co.  and 
to  secure  the  same,  also  of  20  shillings,  granted,  &c.  to  John  White- 
sides  "all  his  estate,  right,  title,  interest,  claim  and  demand,  of,  into, 
and  out  of  all  the  residue  of  the  remainder  of  the  said  one-eighth 
of  the  real  estate  above-mentioned,  as  well  as  all  and  every  the  real 
estate  of  him,  the  said  Charles  Shoemaker,  wheresoever  the  same  may 
be,  and  whether  it  be  in  possession,  reversion,  or  remainder." 

The    demandant    was   married   to    Charles   Shoemaker   on   the   7th  i-  1  -  ^ 

January,  A.  D.   1798. 

Elizabeth  Shoemaker,  the  mother  of  Charles,  died  the  23d  April,  ■'-■' 

1798. 

Charles  Shoemaker  died  the  4th  April,  1807,  leaving  a  widow  and 
children. 

John  Whitesides,  in  the  life-time  of  Elizabeth  Shoemaker,  viz.  on 

the day  of granted  and  conveyed  the  estate  in  question 

to  the  defendant. 

The  question  submitted  to  the  decision  of  the  Court  is,  whether 
the  widow  is  entitled  to  her  dower  in  the  estate  so  devised  to  Charles. 
Shoemaker?  If  the  Court  shall  be  of  opinion  in  the  affirmative,  then 
judgment  to  be  entered  for  the  demandant  for  an  amount  to  be  ascer- 
tained by  the  counsel.     Otherwise,  judgment  to  be  for  the  defendant. 

TiLGHMAN,  C.  J.  In  this  case  two  questions  are  made.  1.  Whether  %  '■'^ 
a  widow  is  entitled  to  dower  of  a  trust  estate.  2.  Whether  she  is  en- 
titled to  dower  of  an  estate,  the  remainder  of  which  in  fee  was  vested 
in  her  husband,  dependent  on  an  estate  for  life  in  a  third  person, 
which  said  remainder  her  husband  had  aliened  during  the  coverture. 
1.  In  England  a  woman  is  not  dowerable  of  a  trust  estate  although 
a  husband  may  be  tenant  by  the  curtesy.  This  is  the  more  remark- 
able, as  dower  is  the  favourite  of  the  common  law.  A  woman  has 
her  dower  where  the  husband  had  only  a  seisin  in  law,  but  a  man  can- 
not be  a  tenant  by  the  curtesy  unless  there  was  a  seisi^n  jii  Jact.  .\'o 
good  reason  has  been  assigned  for  excluding  the  wife  of  her  dower 
in  a  trust  estate.  It  rests  upon  usage,  which  though  not  now  ap- 
proved cannot  be  altered  by  any  authority  less  than  the  parliament. 
In  Pennsylvania  the  usage  has  been  more  reasonable  and  more  anal- 
ogous to  the  general  principles  of  dower.  The  husband  and  wife 
are  placed  on  an  equal  footing.  He  has  his  tenancy  by  the  curtesy, 
and  she  has  her  dower.  I  do  not  know  that  the  question  has  ever 
been  brought  to  a  decision  in  this  Court.  The  reason  of  this  I  take 
to  be,  that  it  has  never  been  doubted.  I  have  frequently  heard  it 
taken  for  granted,  but  never  seriously  questioned.  I  do  not  under- 
stand that  the  learned  counsel  who  now  makes  the  point,  supposes 
the  law  to  be  in  his  favour.  But  he  wishes  it  to  be  settled  by  a  sol- 
emn decision.     It  is  best  that  it  should  be  so.     My  opinion  is,  that 


602  DERIVATIVE  TITLES  (Part  2 

by  the  usage  and  law  of  Pennsylvania  a  woman  is  dowable  of  a  trtist_ 
estate.^" 

2.  By  the  common  law  there  can  be  no  dower,  unless  the  husband 
is  seised  Tn^act  or  in  law  of  the  freehold,  as  well  as  the  estate  of 
inheritance,  during  the  coverture.  This  is  not  questioned  by  the 
counsel  for  the  demandant.  But  he  supposed,  that  in  this  state  the 
law  might  be  different,  in  consequence  of  some  provisions  in  our 
intestate  acts.  He  has,  however,  very  candidly  and  very  proper- 
ly declared,  that  upon  examining  the  act  of  assembly  he  finds,  that 
its  provisions  are  not  applicable  to  a  case  where  the  husband  had 
aliened  his  whole  interest  by  deed.  That  is  the  present  case.  The 
jemandant^  therefore,  is  not  entitled  to  a  recovery  of  ^ower. 

Ydat^s,  J.,  and  Brackenridge,  J.,  concurred. 


BATES  v.  BATES. 

(Court  of  Common  Pleas,  1697.     1  Ld.  Raym.  326.) 

Dower.  The  tenant  pleads,  that  the  husband  ne  unques  fuit  seisie 
que  dower.  Upon  which  issue  being  joined,  the  jury  find,  thit  Ralph 
Bates,  husband  of  the  demandant  was  seised  of  the  lands  now  dtiiianded 
for  life,  remainder  to  A.  and  B.  trustees  for  ninety-nine  years,  re-~ 
mainder  to  the  heirs  of  the  body  of  Ralph  Bates,  &c.  et  si,  &c.  And 
it  was  argued  for  the  demandant,  that  the  husband  died  seised  of  an 
estate  tail  executed ;  for  the  intervening  estate  being  for  years,  ought 
not  to  be  regarded.  That  the  feoffment  of  the  husband  would  have 
discontinued  the  intail,  which  proves  that  he  was  seised  of  it.  See 
2  Bulstr.  29,  30;  Cro.  Car.  233,  234;  1  Roll.  Abr.  632;  8  Vin.  516, 
b,  pi.  2,  and  that  his  warranty  would  have  been  lineal  to  a  son,  which 
proves  that  the  son  is  in  by  descent.  ^_contra  it  was  argued  for  thg^ 
jtenant^  that  dower  was  allowed  by  the  law  for  the  support  of  the  wife 
and  her  children;  and  therefore  where  by  such  allowance  the  wife  and 
her  children  cannot  be  supported,  no  dower  can  be  allowed,  for  lex 
non  facit  inutilia.  Then  dower  in  these  cases,  where  the  mesne  term 
might  be  for  a  thousand  years,  would  be  so  remote,  that  it  would  be 
of  no  avail  to  the  wife.  And  as  to  the  objection,  that  the  heir  was  in 
by  descent;  it  was  answered,  that  that  signifies  nothing,  because  if  the 
intervening  estate  had  been  for  life,  the  heir  had  been  in  by  descent, 
and  yet  in  such  case  without  doubt  the  wife  is  not  dowable. 

This  case-  was  thrice  argued  at  Bar,  and  at  the  first  argument  the 
Court  doubted,  because  the  estate  tail  is  so  disjoined  by  the  intervening 
lease,  and  though  it  be  vested,  it  is  not  executed;  and  perhaps  (they 
said)  the  feoffment  of  the  husband  would  not  have  discontinued  the  in- 
tail.     At  the  second  argument  Treby,  Chief  Justice,  was  of  opinion 

2  0  As  to  the  rights  of  the  widow  of  a  trustee  or  cestui  que  trust,  see  Kenne- 
son.  Cases  on  Trusts,  223  et  seq. 


Ch.  5)  ESTATES   CREATED  603 

for  the  demandant,  because  at  the  instant  of  the  death  of  the  husband 
there  was  but  an  estate  for  years  in  the  trustees,  and  the  estate  tail 
was  in  the  husband;  and  (by  him)  the  instant  should  be  divided  in 
favour  of  dower,  as  Cro.  Eliz.  503,  Broughton  v.  Randall.  But  upon 
the  third  argument  judgment  was  given  for  the  demandant  upon  this 
reason,  becausejhe  husband  had  a  freehold  and  inheritance  in  him,  and 
the_  intervening  estate,  being  only  for  years,  ought  not  to  be  regarded. 
For  at  common  law  such  a  term  was  a  precarious  thing,  the  freeholder 
might  have  destroyed  it  at  his  pleasure  by  a  feigned  recovery.  A 
descent,  which  tolls  an  entry,  does  not  disturb  a  term ;  and  if  tenant 
for  Hfe  commits  waste,  such  an  intervening  term  will  not  obstruct  the 
action  of  waste,  as  an  intervening  estate  of  freehold  would  do.  And 
therefore  all  the  Court  was  of  opinion,  that  such  intervening  term 
would  not  hinder  dower,  as  it  would  have  done  if  it  had  been  an  estate 
for  ITfe,^^  according  to  the  opinion  of  Perkins,  336,  the  only  au- 
thority in  the  books  for  that  resolution,  jjidgment  was  given  for  the, 
demandant. 


-^y^- 


EDWARDS  V.  BIBB. 
(Supreme  Court  of  Alabama,  1875.    54  Ala.  475.) 

Appeal  from  Limestone  County  Court. 

Heard  before  Hon.  R.  S.  Watkins. 

This  was  a  bill  in  equity,  filed  by  Ann  C.  Edwards  and  her  hus- 
band, against  Mary  P.  Bibb  individually,  and  as  administratrix  of 
the  estate  of  David  Porter  Bibb,  deceased,  and  certain  of  his  heirs 
at  law,  seeking  to  have  dower  allotted  to  her  in  certain  lands  in 
their  possession. 

The  complainant,  Ann  C,  in  the  year  1857,  intermarried  with  one 
Thomas  Bibb,  Jr.,  and  continued  to  live  with  him  as  his  wife  until 
his  death,  and  afterwards  intermarried  with  her  present  husband  and 
co-complainant,  Julian  T.  Edwards.  Her  claim  of  dower  in  said 
lands  arose  in  this  wise:  Prior  to  the  year  1840,  Thomas  Bibb,  Sr., 
(the  father  of  Thomas  Bibb,  Jr.,  complainant's  first  husband,)  was 
seized  of  a  valuable  tract  of  land  in  Limestone  county,  the  lands  in 
question,  known  as  the  "Belmina  estate." 

Thomas  Bibb,  Sr.,  died  on  the  23d  day  of  April,  1840,  leaving  a 
last  will  and  testament,  which  was  duly  admitted  to  probate  in  that 
county.  The  will,  among  other  provisions  not  necessary  to  be  here 
noticed,  devised  said  Belmina  estate,  with  the  exception  of  a  small  por- 
tion, (which  he  had  conveyed  to  one  Jackson,)  to  testator's  wife,  Par- 
melia  Bibb,  during  her  natural  life,  and  at  her  death  "untO'  my  eldest 
son,  Thomas  Bibb,  and  his  lawful  male  issue,  and  in  case  my  said 

21  What  would  be  the  situation  if  the  intervening  freehold  were  a  conttn- 
gent  estate? 


604  DERIVATIVE  TITLES  (Part  2 

son  Thomas  should  die,  leaving  no  lawful  male  issue,  or  leaving  such 
male  issue,  the  same  should  become  extinct,  before  he  or  they  shall 
arrive  at  the  age  of  twenty-one  years,  and  likewise  leaving  no  male  is- 
sue, then,  and  in  that  case,  my  will  and  desire  is,  that  said  estate, 
with  the  property  named  and  devised  to  my  said  wife,  shall  be- 
come the  property  of  my  son,  David  Porter  Bibb,  to  descend  to  the  law- 
ful male  issue  of  him  my  said  sOn  Porter." 

This  clause  of  the  will  was  once  before  construed  in  this  court,  in 
3,n  ejectment  suit  brought  to  recover  the  lands,  in  which  dower  is 
souglit,  from  the  heirs  of  David  Porter  Bibb.  See  Edwards  and  Wife 
V.  Bibb  et  al.,  43  Ala.  666. 

About  the  year  1855,  said  Parmelia  departed  this  life,  after  taking 
possession  of  the  lands  devised  to  her  for  life,  and  thereupon  said 
Thomas  Bibb,  Jr.,  entered  and  took  possession,  and  so  remained  until 
his  death  in  1861,  leaving  a  daughter,  the  fruit  of  his  marriage  with 
complainant,  but  never  having  had  any  male  issue.  He  left  a  will  from 
which  his  widow  duly  dissented,  and  which  in  the  view  the  court 
took  of  this  case  need  not  be  further  noticed.  In  1865  the  said  David 
Porter  Bibb  entered  into  possession  and  so  remained  until  his  death 
in  the  latter  part  of  that  year,  intestate.  The  appellees,  Mary  P.  Bibb, 
his  widow  and  administratrix,  and  his  heirs  at  law,  were  in  possession 
of  said  lands  at  the  time  of  the  filing  of  said  bill,  and  had  made  par- 
tition among  themselves. 

The  chancellor  dismissed  the  bill  on  demurrer,  and  hence  this  ap- 
peal. 

[For  subsequent  opinion,  see  Bibb  v.  Bibb,  79  Ala.  437.] 

Stoxe,  J."^^  In  the  case  of  Edwards  &  Wife  v.  Bibb  et  al.,  43  Ala. 
666,  die  question  considered  and  decided  was,  whether  under  the  will 
of  Thomas  Bibb,  Sr.,  Thomas  Bibb,  Jr.,  took  an  absolute  title  in  fee  to 
the  i)roperty  therein  described  as  a  portion  of  the  Belmina  estate,  or 
did  it  pass  to  David  Porter  Bibb  on  the  death  of  Thomas  Bibb,  Jr., 
'JJeaving^  no  lawful  male  issue."  Thomas  Bibb,  Jr.,  had  died  "leaving 
no  lawful  male  issue."  It  was  then  ruled  that  the  words  of  the  will  con- 
stituted a  valid  "executory  devise"  of  the  estate  over  to  David  Porter 
Bibb.  An  application  for  a  rehearing  in  that  cause  was  overruled,  and 
the  decision  became  final,  settling  for  all  time  the  rights  of  the  parties 
to  that  suit  to  the  property  involved  therein. 

The  present  is  an  aj^plication  by  the  widow  of  Thomas  Bibb,  Jr.,  for 
dower  in  the  same  lands,  the  title  to  which,  it  was  determined  in  that 
suit,  passed  from  Thomas  Bibb,  Jr.,  and  his  heirs,  by  his  death, 
"leaving  no  lawful  male  issue."  We  are  asked  to  review  the  decision 
pronounced  in  that  cause.     *     *     * 

It  results  from  what  we  have  said  above,  that  under  the  will  of 
Thomas  Bibb,  Sr.,  Thomas  Bibb,  Jr.,  took  an  estate,  determinable  on  his 
dying  "leaving  no  male  issue" ;  and  that  inasmuch  as  he  did  so  die,  the 

22  A  portion  of  the  opinion  is  omitted. 


Ch.  5)  ESTATES   CREATED  605 

executory  devise  over  to  David  Porter  Bibb  took  effect  at  the  death 
of  the  former.  We  shall,  consequently,  in  the  discussion  of  the  re- 
maining questions  presented  by  this  record,  deal  with  the  subject  as 
if  there  were  no  words  of  entailment  in  the  devise  we  are  consider- 
ing. 

Under  this  will  thus  construed,  Thomas  Bibb,  Jr.,  either  took  a  fee 
simple,  having  another  fee  engrafted  upon  it  by  way  of  executory  de- 
vise, to  come  into  being  on  the  happening  of  an  event  therein  provided 
for  as  a  conditional  limitation,  or  he  took  only  a  life  estate,  and  at  his 
death,  his  lawful  male  issue,  if  he  had  left  such,  would  have  taken  as 
purchasers.  If  the  latter  be  the  true  construction  of  the  devise,  no  one 
will  contend  that  Thomas  Bibb's  widow  would  be  dowable  of  the 
lands.  Supposing,  then,  that  the  estate  of  Thomas  Bibb  was  a  de-. 
feasible  fee,  the  question  comes  up,  is  his  widow  entitled  to  dower,  the 
estate  of  her  husband  having  expired  with  his  life? 

Few  questions  of  the  law  have  been  more  discussed,  or  have  given 
rise  to  more  perplexing  distinctions  than  that  of  the  widow's  right 
to  (lower  in  lands,  the  title  to  which  passed  out  of  her  husband  con- 
temporaneously with  his  death,  by  force  of  some  limitation,  rever- 
sion or  remainder.  The  case  in  hand  is  one  of  remainder,  which  has 
taken  effect.  The  question  is  thus  stated  by  a  very  accurate  writer: 
"Is  the  widow  entitled  to  dower  after  the  estate  of  her  husband  has 
determined,  before  its  natural  expiration,  by  the  happening  of  an 
event  i)articularly  mentioned  in  the  instrument  creating  it,  but  without 
disturbing  or  overreaching  his  prior  seisin?" 

The  case  of  Buckworth  v.  Thirkell,  is  one  of  the  first  cases  on  this 
question.  3  Bos.  &  Pul.  652,  note.  That  case  came  before  Lord  Mans- 
field, one  of  England's  greatest  jurists,  and  it  was  determined  that  the 
husband  was  entitled  to  curtesy.  The  rule  in  regard  to  dower  is  the 
same  on  this  question  as  that  in  regard  to  curtesy. 

The  case  of  Buckworth  v.  Thifkell  has  not  had  the  good  fortune 
of  commanding  universal  assent.  Mr.  Butler,  in  his  note  to  Coke 
upon  Littleton,  page  141,  while  conceding  that  upon  the  termination 
of  an  estate  tail  by  the  failure  of  issue,  the  right  of  curtesy  or  dower 
will  attacli  as  a  prolongation  of  the  estate,  yet  contended  that  when 
a  fee  simple  is  determined  by  a  valid  executory  devise,  neither  curtesy 
or  dower  ensues.  Other  writers  contend  for  the  same  distinction. 
See  very  full  discussions  of  this  question  in  Park  on  Dower,  page 
157  et  seq.;  1  Scrib.  on  Dower,  284  et  seq.  To  follow  them  through 
the  shadowy  mazes  of  their  disquisitions  would  tend  rather  to  be- 
wilder than  instruct.  The  human  mind  is  not  wont  to  rest  satisfied 
w^ith  distirictions  when  it  can  find  no  substantial  differences  to  rest 
them  on. 

Speaking  of  dower,  as  affected  by  conditional  limitations.  Chan- 
cellor Kent  says :  "The  estate  of  the  husband  is,  in  a  more  emphat- 
ical  degree,  overreached  and  defeated  by  the  taking  effect  of  the 
limitation  over,  than  in  the  case  of  collateral  limitation;"    and,  he 


606  DERIVATIVE  TITLES  (Part  2 

adds,  "the  ablest  writers  on  property  law  are  evidently  against  the 
authority  of  Buckworth  v.  Thirkell,  and  against  the  right  of  the  dow- 
ress  when  the  fee  of  the  husband  is  determined  by  executory  devise,  or 
shifting  use."    4  Kent's  Com.  50. 

Mr.  Jacob,  in  his  learned  note  published  in  the  appendix  to  2  Bright 
on  H.  &  W.  p.  468,  says :  "Upon  the  introduction  of  conditional  lim- 
itations by  way  of  use  and  executory  devises,  it  became  a  question 
whether  dower  or  curtesy  should  cease  when  the  estate  was  determined 
by  either  of  these  modes.  Upon  principle,  it  would  seem  that  the  deci- 
sion of  this  question  ought  to  be  guided  by  analogy  to  the  general  rule 
of  the  common  law,  and  not  by  analogy  to  the  excepted  case  of 
an  estate  tail.  *  *  *  The  conditional  limitation  destroying- 
the  estate,  defeats  the  whole  of  that  which  is  expressly  granted.  It 
would  be  singular,  if  that  which  is  included  in  the  grant  by  implica- 
tion only,  could  be  preserved."  He  adds,  "The  supposed  rule,  (speak- 
ing of  Mr.  Preston's  attempt  to  justify  the  rule  laid  down  in  Buck- 
worth  v.  Thirkell,)  rests  on  very  doubtful  grounds." 

In  New  York,  it  was  decided  by  Chancellor  Walworth  that  where 
an  estate  in  fee  was  terminated  by  the  happening  of  a  conditional  lim- 
itation, and  the  executory  devisees  took  as  purchasers,  the  widow  of 
the  first  devisee  could  not  have  dower.  See  Adams  v.  Beekman,  1 
Paige  (N.  Y.)  631. 

In  the  case  of  Weller  v.  Weller,  28  Barb.  (N.  Y.)  588,  the  same 
question  arose  as  in  Adams  v.  Beekman,  supra.  The  court  said,  "The 
widow  takes  her  estate  through  the  husband,  and  not  from  him  like 
one  who  inherits ;  for  he  can  do  no  act  which  will  divest  her  right. 
And  when  the  estate  of  the  husband  is  determined  by  the  happening 
of  an  event  which  defeats  its  further  continuance,  the  estate  in  dower 
must  be  determined  with  it.  It  is  a  part  of  the  same  estate  of  free- 
hold and  inheritance  of  which  the  husband  was  seized,  and,  to  the  ex- 
tent of  it,  so  much  abstracted  from  what  would  otherwise  descend  to 
the  heirs  at  law.  *  *  *  The  wife's  right  to  dower  ceased  with  the 
estate  out  of  which  it  could  only  proceed.  This  conclusion  conflicts 
with  Lord  Mansfield's  judgment  in  Buckworth  v.  Thirkell.  It  is  the 
rule,  however,  given  by  Mr.  Cruise  in  his  treatise  on  the  law  of  real 
property,  and  is  the  rule  now  sustained  by  Mr.  Park  with  singular 
ability  in  his  work  on  the  law  of  dower." 

Washburn,  in  his  work  on  Real  Property,  vol.  1,  p.  212,  says :  "There 
is  a  class  of  cases  where,  what  at  first  sight  might  seem  to  be  an  incon- 
sistent doctrine  is  applied.  Thus,  in  the  familiar  case  of  tenant  in 
tail  dying  without  issue,  although  the  estate,  as  one  of  inheritance,  is 
determined,  and  the  remainder  over  upon  such  a  contingency  takes 
effect,  yet,  it  having  been  an  estate  of  inheritance  in  the  tenant,  his 
widow,  if  he  dies,  will  be  entitled  to  dower,  it  being  by  implication 
of  law  annexed  to  such  an  estate  as  an  incidental  part  of  it,  a  portion 
of  the  quantity  of  enjoyment  designated  by  the  terms  of  the  limitation 
itself.    And  the  doctrine  is  broadly  laid  down  by  writers  upon  the  sub- 


Ch.  5)  ESTATES  CREATED  G07 

ject,  that  wherever  the  husband  is  seized  during  coverture  of  such  an 
estate,  as  is  in  its  nature  subject  to  the  attachment  of  dower,  the  right 
of  dower  will  not  be  defeated  by  the  determination  of  that  estate  by 
its  regular  and  natural  limitation."  He  adds :  "This  class  of  cases 
has  given  rise  to  much  ingenious  speculation  and  grave  diversity  of 
opinion,  where  the  estate  of  the  husband  is  one  of  inheritance,  but 
ceases  at  his  death  by  what  is  called  a  conditional  limitation." 

The  case  of  Buckworth  v.  Thirkell  was  followed  in  Moody  and  Wife 
V.  King,  2  Bing.  447;  and  in  this  country,  in  the  cases  of  Milledge  v. 
Lamar,  4  Desaus.  (S.  C.)  617;  Evans  v.  Evans,  9  Pa.  190,  and  North- 
cut  V.  Whipp,  12  B.  Mon.  (Ky.)  65.  In  a  later  case  in  South  Carolina, 
Wright  V.  Herron,  6  Rich.  Eq.  339,  the  court  of  errors  was  equally 
divided,  and  no  decision  was  pronounced.  This  case  presented  the 
same  question  as  the  one  presented  in  Buckworth  v.  Thirkell. 

In  the  case  of  Evans  v.  Evans,  supra,  the  opinion  of  the  supreme 
court  of  Pennsylvania  was  pronounced  by  Chief  Justice  Gibson — one 
of  the  ablest  jurists  that  ever  sat  on  that  bench.  It  will  be  seen  that 
he  was  laboring  to  break  down  the  imaginary  distinction  attempted 
to  be  drawn  by  Mr.  Butler  and  others  between  the  cases  of  remainder- 
over,  made  and  provided  to  take  effect  after  the  termination  of  an  es- 
tate tail  by  failure  of  issue,  and  the  termination  of  an  estate  in  fee 
simple  by  failure  of  heirs,  with  a  valid  limitation  over  by  way  of 
executory  devise.  He  says :  "I  can  not  apprehend  tlie  reason  of  his 
[Mr.  Butler's]  distinction  between  a  fee  limited  to  continue  to  a  par- 
ticular period  at  its  creation,  which  curtesy  or  dower  may  survive,  and 
the  devise  of  a  fee  simple,  or  a  fee  tail,  absolute  or  conditional,  which, 
by  subsequent  words,  is  made  determinable  upon  some  particular 
event,  at  the  happening  of  which  curtesy  or  dower  will  also  cease."  He 
propounds,  and  in  eft'ect  answers,  the  following  pertinent  inquiry, 
"How  to  reconcile  to  any  system  of  reason,  technical  or  natural,  the 
existence  of  a  derivative  estate,  after  the  extinction  of  that  from 
which  it  was  derived,  was  for  him  [Mr.  Butler]  to  show;  and  he  has 
not  done  it." 

Any  attempt  to  maintain  a  distinction  between  the  claim  of  dower 
or  curtesy,  when  the  inheritance  in  an  estate  tail  has  failed,  and  a 
limitation  over  has  taken  effect,  per  formam  doni,  and  the  same  result 
when  an  estate  in  fee  has  been  determined  by  the  happening  of  the 
event  upon  which  a  conditional  limitation  over  was  made  to  take 
effect,  by  the  terms  of  the  instrument  creating  the  title,  is  too  artifi- 
cial and  technical  to  command  our  assent.  Dower  is  a  derivative 
estate;  it  is  derived  from  the  estate  of  the  husband.  It  is  the  creature 
of  the  law,  not  of  contract.  While  the  husband  lives,  there  is  no  es- 
tate in  dower.  It  is  an  interest,  carved  out  of,  or  abstracted  from  the 
inheritance ;  or  out  of  the  estate  of  the  husband's  alienee,  if  the  wid- 
ow survives,  and  has  not  delinquished  her  dower.  The  husband,  by 
any  conveyance  made,  or  recovery  suffered  by  him,  cannot  bar,  or 
impair  her  right. 


608  DERIVATIVE  TITLES  (Part  2 

When,  however,  by  the  very  terms  of  the  conveyance  or  devise,  le- 
gal in  form  and  purpose,  the  estate  of  the  husband  expires  with  him, 
cutting  off  per  formam  doni,  the  heritable  quality  of  his  estate,  and 
the  title  passes  to  another  as  purchaser  by  a  valid  limitation  over,  the 
primitive  estate  is  gone,  and  there  is  nothing  left  from  which  dower 
can  be  derived.  We  do  not  declare  what  would  be  the  result,  if  the 
case  were  one  of  mere  reversion  to  the  devisor  or  grantor.  It  will 
be  time  enough  to  consider  that  question  when  it  arises. 

Decree  affirmed. 

Chief  Justice  BrickEll,  having  been  of  counsel,  not  sitting.^' 


ELLIS  v.  KYGER. 

(Supreme  Court  of  Missouri,  1SS6.     90  Mo.  COO,  3  S.  TV.  23.) 

Black,  J.  This  is  a  suit  for  the  assignment  of  dower.  One  of  the 
plaintiffs,  Polly  Ellis,  and  her  former  husband,  Isaac  Jacobs,  on  the 
thirteenth  of  November,  1859,  conveyed  to  Frederick  Billum,  in  trust 
for  the  Pacific  railroad,  a  parcel  of  land  twelve  hundred  and  sixty- 
seven  feet  in  length  by  an  average  width  of  five  hundred  feet.  The  deed 
recites  that  it  is  made  "upon  the  condition  that  if  the  Pacific  Rail- 
road Company  shall  not  construct  the  said  railroad  through  said  tract, 
or  if,  when  constructed,  they  shall  not  establish  a  freight  and  pas- 
senger station  upon  said  tract,  then  the  conveyance  shall  be  null  and 
void,  but  otherwise  to  remain  in  full  force  and  eff'ect."  Isaac  Jacobs 
died  in  1863.  The  railroad  was  completed  to  a  point  beyond  the 
tract  of  land  in  question  in  1865.  There  was  evidence,  the  bill  of 
exceptions  recites,  tending  to  show  that  the  company  failed  to  per- 
form the  conditions  in  the  deed,  and  evidence  to  the  contrary  effect. 
In  1869,  Asa  Whitehead  procured  deeds  from  some  of  the  heirs  of 
Jacobs,  and  in  that  year  built  a  house  upon  the  lots  in  question,  which 
was  destroyed  by  fire.  Neither  Jacobs  in  his  lifetime,  nor  his  heirs, 
ever  entered  or  made  any  effort  to  recover  the  property  for  condition 
broken.  In  1878,  Coventry,  Cockrell  and  Zoll,  who  had  acquired  the 
title  of  Whitehead  and  the  other  heirs  of  Jacobs,  quit-claimed  a  part 
of  the  premises  described  in  the  deed  to  the  trustee  of  the  railroad 
company,  and  the  company  at  the  same  time  quit-claimed  the  residue  to 
them,  from  whom  defendant  acquired  his  title. 

The  trial  court  gave  an  instruction  that,  upon  the  evidence  the 
plaintiffs  could  not  recover.  That  the  conditions  in  the  deed  for 
the  construction  of  the  railroad  through  the  land  therein  described, 
and  the  establishment  of  a  freight  and  passenger  depot  thereon,  were 
conditions  subsequent,  is  too  clear  to  call  for  the  citation  of  author- 
ities. The  trustee  became  seised  of  the  premises,  though  the  estate 
in   him   continued   defeasible   until    the   conditions   were  performed, 

23  See  notes  to  Lessee  of  Borland  v.  Marshall,  supra,  5S8. 


Ch.  5)  ESTATES  CREATED  609 

waived,  released,  or  barred  by  the  statute  of  limitations,  or  by  estop- 
pel. As  no  time  was  fixed  within  which  the  conditions  were  to  be  per- 
formed, the  law  would  allow  the  company  a  reasonable  time.  2  Wash. 
Real  Prop.  (4th  Ed.)  1.  Since  the  railroad  was  completed  to  a  point 
beyond  the  land  in  question,  in  1865,  a  reasonable  time  has  long  since 
elapsed;  and  we  must  assume,  under  the  instructions  given,  that  the 
company  has  failed  to  perform  the  stipulations  in  the  deed  to  the 
trustee. 

It  is  well  settled  that  an  action  of  ejectment  may  be  maintained  by 
the  grantor  or  his  heirs  for  condition  broken,  without  any  entry  or 
demand  of  possession.  Austin  v,  Cambridgeport  Parish,  21  Pick. 
(Mass.)  215;  Plumb  v.  Tubbs,  41  N.  Y.  442;  Cowell  v.  Spring  Co., 
100  U.  S.  55,  25  L.  Ed.  547.  Our  statute  with  respect  to  actions  of 
ejectment  leads  to  the  same  conclusion.  R.  S.,  1879,  §§  2240-47.  But 
it  is  equally  well  settled  that  non-performance  of  the  condition  alone 
does  not  divest  the  estate.  Performance  of  the  condition  may  be 
waived ;  and  the  estate  continues  in  the  grantee  after  the  breach  until 
he,  who  has  a  right  to  insist  upon  performance,  elects  to  declare  a 
forfeiture.  The  estate  continues  with  its  original  incidents  until  entry 
or  some  act  equivalent  to  it.  4  Kent,  127;  2  Wash.  Real  Prop.  (4th 
Ed.)  12;  1  Smith's  Lead.  Cas.  (8th  Ed.)  130;  Memphis  &  C.  R.  Co. 
V.  Neighbors,  51  Miss.  412 ;  Kenner  v.  Contract  Co.,  9  Bush  (Ky.)  202 ; 
Knight  V.  Railroad,  70  Mo.  231.  The  grantee  in  the  deed  of  trust, 
therefore,  continued  to  be  the  owner  of  the  premises  at  and  after  the 
death  of  Jacobs,  who  was  not  seised  at  any  time  after  the  delivery  of 
the  deed.  A  widow  is  entitled  to  be  endowed  in  all  the  lands  of  which 
her  husband,  or  any  person  to  his  use,  was  seised  of  an  estate  of  in- 
heritance at  any  time  during  the  marriage,  to  which  she  shall  not 
have  relinquished  her  dower.  R.  S.  1879,  §  2186.  As  the  plaintiff 
here  relinquished  her  dower  by  deed  duly  acknowledged,  and  her  hus- 
band did  not  enter  for  condition  broken,  and  was,  therefore,  not  seised 
of  the  premises  in  dispute  at  any  time  after  the  delivery  of  the  deed, 
it  would  seem  to  follow  that  the  plaintiff  is  not  entitled  to  dower. 
Washburn  says,  it  is  enough  that  the  husband  had  a  seisin  in  law,  with 
the  right  to  an  immediate  corporal  seisin.  If  it  was  not  so,  it  might 
often  be  in  the  husband's  power,  by  neglecting  to  take  such  seisin,  to 
deprive  his  wife  of  her  right  to  dower.  1  Wash.  Real  Prop.  (4th  Ed.) 
215:  But  here  the  husband  made  no  entry,  nor  was  he  seised  in  law. 
The  same  author  in  the  same  connection  says,  if,  at  common  law,  the 
husband  had  not,  during  coverture,  anything  more  than  a  mere  right  of 
entry  or  of  action  to  obtain  seisin,  it  would  not  be  sufficient  to  entitle 
his  widow  to  dower.  The  mere  right  of  entry  upon  lands  was  not 
suf^cient  to  give  dower.  1  Scrib.  on  Dower,  243.  If  the  husband  dies 
before  entry,  in  a  case  of  forfeiture  for  condition  broken,  his  wife  is 
not  dowerable,  because  he  had  no  seisin,  either  in  fact  or  law.  4  Kent 
(13th  Ed.)  38.  In  Thompson  v.  Thompson,  46  N.  C.  431,  the  court  said, 
Aig.Pbop. — 39 


610  DERIVATIVE  TITLES  (Part  2 

by  way  of  illustration:  "So  where  one  makes  a  feoffment  upon  con- 
dition, and  dies  after  condition  broken,  but  without  revesting  his  es- 
tate by  entry,  and  afterwards  the  heir  enters  and  revests  the  estate, 
the  widow  is  not  entitled  to  dower." 

It  results  from  what  has  been  said,  both  upon  principle  and  au- 
thority, that  the  plaintiff  is  not  entitled  to  dower  in  the  premises  in 
question.  The  result  would  be  the  same  had  the  heirs  of  Isaac  Jacobs, 
and  not  their  grantees  only,  entered  for  breach  of  the  condition  in  the 
deed  to   Billum. 

It  is  further  insisted  by  the  appellants  that  the  defendant  is  estop- 
ped from  denying  plaintiff's  right  to  dower.  This  contention  is  based 
upon  the  fact  that  the  defendant's  grantors  acquired  possession  and 
claim  of  title,  at  least,  from  Whitehead,  who  made  claim  and  took 
possession  alone  under  his  deeds  from  the  heirs  of  Isaac  Jacobs. 
The  authorities  all  show  that  the  right  to  enter  for  condition  broken 
descended  to  the  heirs  of  Jacobs,  the  right  not  having  been  exercised 
by  him  in  his  lifetime.  But  though  this  be  true,  it  does  not  follow 
that  the  widow  would,  for  that  reason,  be  entitled  to  dower.  We 
have  seen  that  she  would  not  be  entitled  to  dower  because  her  husband 
was  not  seised,  either  in  fact  or  law.  There  is,  therefore,  nothing  in- 
consistent between  a  claim  under  them,  and  the  claim  that  the  widow 
should  not  be  endowed. 

It  is  urged  that  the  general  common  law  rule,  which  confined  the 
right  to  take  advantage  of  the  non-performance  of  a  condition  sub- 
sequent annexed  to  an  estate  in  fee  to  the  grantor  or  his  heirs,  has 
been  modified  by  our  statutes  with  respect  to  conveyances.  We  do 
not  stop  to  consider  this  question,  for  it  cannot  affect  the  result  before 
reached  in  this  case. 

The  judgment  is,  therefore,  affirmed.     All  concur. 


WALLIS  V.  DOE  ex  dem.  SMITH'S  HEIRS. 
(High  Court  of  Errors  and  Appeals  of  Mississippi,  1844.    ?  Smedes  &  M.  220.) 

Appeal  from  the  circuit  court  of  Holmes  county. 

This  was  an  action  of  ejectment,  brought  by  the  heirs  at  law  of 
Chafin  Smith,  to  the  October  term,  1839,  of  the  circuit  court  of  Holmes 
county,  to  recover  a  tract  of  land  lying  in  that  county.  The  declara- 
tion and  notice  were  served  on  Joseph  Wallis,  who,  at  the  July  special 
term,  1840,  appeared,  and  caused  himself  to  be  made  defendant,  con- 
fessed the  lease,  entry,  and  ouster,  &c.,  and  pleaded  not  guilty.  On 
the  trial  it  was  proved  that  the  plaintiffs  were  the  heirs  at  law  of  Chafin 
Smith,  who  in  his  life-time  was  admitted  to  have  had  title  to  the  land 
in  dispute,  that  he  lived  upon  it,  and,  at  the  time  of  his  death,  it  was 
his  homestead ;  that  Joseph  Wallis  purchased  it,  at  sheriff's  sale,  under 
an  execution  against  Jane  Smith,  who  was  the  widow  of  said  Chafin 
Smith,  and  claimed  it  by  virtue  of  said  purchase ;  that  at  the  time  of  the 


Ch.  5)  ESTATES  CREATED  611 

commencement  of  the  suit,  the  land  was  in  possession  of  one  Martin, 
who  held  and  claimed  it  as  his  own;  that  Joseph  Wallis  sold  it  to  said 
Martin,  but  none  of  the  witnesses  knew  of  any  written  contract  be- 
tween them,  or  conveyance  to  Martin. 

The  defendant's  counsel  then  read  to  the  jury  the  execution,  sheriff's 
return  thereon,  and  the  deed  under  which  he  purchased  and  claimed. 
It  was  admitted  that  the  widow  was  still  living. 

No  further  evidence  being  offered  by  either  party,  the  defendant's' 
counsel  moved  the  court  to  instruct  the  jury. 

1st.  That  if  they  believed,  from  the  evidence,  that  Jane  Smith  was 
the  widow  of  Chafin  Smith,  and  that  he  owned  and  lived  upon  the 
lands  in  dispute,  at  the  time  of  his  death,  and  that  the  same  have  been 
purchased  by  the  defendant,  under  executions  against  her,  and  that  she 
is  still  living,  that  unless  they  are  satisfied,  from  the  evidence,  that  her 
dower  in  his  lands  has  been  assigned  to  her,  they  must  find  for  thf 
defendant. 

2d.  That  the  widow  of  a  decedent  is,  by  law,  entitled  to  the  posses- 
sion of  the  tract  of  land  constituting  the  homestead  of  her  husband,  at 
the  time  of  his  death,  until  her  dower  in  his  lands  is  assigned  to  her. 

3d.  That  unless  the  jury  believe,  from  the  evidence,  that  the  defend- 
ant was  in  possession,  at  the  time  of  the  service  of  the  declaration  in 
this  cause,  they  must  find  for  the  defendant. 

4th.  That  the  deed  of  the  sheriff  conveys  only  such  title  as  Jane 
Smith  herself  could  lawfully  have  made. 

All  of  which  the  court  refused  to  give,  and,  at  the  request  of  the 
plaintiff's  counsel,  instructed  the  jury,  "That  if  they  believe,  from  the 
testimony,  the  defendant,  either  in  his  own  person,  or  by  another 
claiming  under  him,  was  in  possession  of  the  land,  at  the  time  of 
bringing  the  suit,  it  is  sufficient  proof  of  possession,  to  entitle  the  plain- 
tiff to  recover,  so  far  as  possession  is  concerned."  To  all  of  which  the 
defendant's  counsel  excepted.  The  jury  found  for  the  plaintiffs,  and 
the  court  rendered  judgment  accordingly.  The  defendant's  counsel 
then  moved  for  a  new  trial ;  his  motion  was  overruled,  and  he  appealed 
to  this  court.  The  errors  assigned  are,  the  refusal  of  the  court  below 
to  give  the  instructions  asked  by  the  defendant,  and  giving  that  asked 
for  by  the  plaintiffs. 

Clayton,  J.  This  was  an  action  of  ejectment,  brought  by  the  de- 
fendants in  error  as  the  heirs  of  their  ancestor,  to  recover  a  tract  of 
land  in  Holmes  county.  Two  errors  are  assigned  for  reversing  the 
judgment. 

It  is  first  objected  that  the  land  was  the  homestead  or  place  of  resi- 
dence of  Smith,  the  ancestor,  at  the  time  of  his  death,  that  he  left  a 
widow  who,  under  the  statute,  is  entitled  to  the  premises  until  her 
dower  is  assigned  to  her,  and  that  the  plaintiff  in  error  claims  under 
the  widow  as  the  purchaser  of  her  interest  at  execution  sale. 

At  common  law  the  widow  had  a  right  to  remain  in  the  mansion- 
house  of  her  deceased  husband  for  forty  days  after  his  death,  within 


612  D'ERivATivE  TITLES  (Part  2 

which  time  it  was  the  duty  of  the  heir  to  assign  her  dower.  But  before 
such  assignment  she  could  not  maintain  ejectment  for  it.  Adams  on 
Ejectment,  65 ;  1  Th.  Coke,  601 ;  2  C.  &  P.  430.  She  has  no  vested  es- 
tate for  Hfe  in  any  particular  part,  until  after  allotment.  4  Kent,  62. 
The  right  of  quarantine,  or  the  right  to  remain  in  possession  of  the 
mansion-house,  is  by  our  statute  extended,  so  as  to  enable  her  to  retain 
it  free  from  molestation  and  rent,  until  her  dower  is  assigned.  H.  & 
'H.  353.  Under  a  similar  statute  in  New  Jersey  it  has  been  decided, 
that  an  action  of  ejectment  will  not  lie  against  her,  unless  her  dower 
had  been  previously  assigned.  Den  v.  Dodd,  6  N.  J.  Law,  367,  This 
decision  is  against  the  weight  of  English  and  American  authorities, 
in  states  in  which  no  such  statute  exists ;  but  it  may  be  a  just  construc- 
tion, and  applicable  to  our  own  statute.^*  But  be  this  as  it  may,  this 
right  of  enjoyment  of  the  mansion-house,  we  regard  as  a  mere  personal 
privilege,  one  which  cannot  be  transferred  to  a  third  person ;  and  that 
such  third  person  claiming  under  her  may  be  put  out  by  the  heir,  and 
driven  to  the  remedy  to  recover  the  dower.  Until  assignment  the  wid- 
ow has  no  estate  in  the  lands,  and  her  claim  is  a  mere  charge  or  incum- 
brance upon  them.  We  think  therefore,  that  this  defence  cannot  be 
sustained.  See  4  Kent,  61.^**  *  *  * 
Judgment  is  therefore  reversed  and  a  new  trial  granted. 


FLYNN  V.  FLYNN. 

(Supreme  Judicial  Court  of  Massachusetts,  1S9S.     171  Mass.  312,  50  N.  E.  650, 
42  L.  R.  A.  98,  6S  Am.  St.  Rep.  427.) 

Lathrop,  J.  The  land  in  which  the  plaintiff  had  an  inchoate  right 
of  dower  was  taken  by  the  city  of  Boston  by  right  of  eminent  domain, 
for  the  purposes  of  a  schoolhouse,  the  city  acting  by  virtue  of  and  in 
accordance  with  the  provisions  of  the  St.  of  1895,  c.  408.  This  act,  in 
sec.  2,  gives  the  board  of  street  commissioners  of  Boston,  at  the  request 
of  the  school  committee,  power  to  "take  by  purchase  or  otherwise  such 
lands  for  school  purposes  as  said  school  committee,  with  the  approval 
of  the  mayor,  shall  designate,  and  to  take  any  lands  under  the  right  of 
eminent  domain."  The  board  is  also  required  to  "sign,  and  cause  to  be 
recorded  in  the  registry  of  deeds  for  the  county  of  Suffolk,  a  statement 
containing  a  description  thereof  as  certain  as  is  required  in  a  common 
conveyance  of  land  and  stating  that  the  same  are  taken  for  school  pur- 
poses ;  and  upon  the  recording  of  any  such  statement  the  lands  described 
therein  shall  be  taken  in  fee  for  said  city."  We  assume  that  all  the  for- 
malities required  have  been  complied  with,  and  that  the  city  now  owns 
the  land  in  fee. 

24  See  Callahan  v.  Nelson,  128  Ala.  671,  29  South,  555  (1900). 

26  The  balance  of  the  opinion,  in  which  the  court  concluded  that  the  portion 
of  the  c'harge  regarding  the  sufficiency  of  the  proof  of  possession  to  entitle  the 
plaintiff  to  recover  was  erroneous,  is  omitted. 


Ch.  5)  ESTATES  CREATED  613 

The  question  then  is  whether  an  inchoate  right  of  dower  is  such  an 
interest  in  land  that,  when  the  land  is  taken  by  the  right  of  eminent 
domain,  the  wife  may  apply  to  a  court  of  equity  to  have  in  some  way 
the  benefit  of  such  interest.  We  are  not  aware  that  this  right  has  ever 
before  been  asserted  in  this  Commonwealth,  and  this  is  the  first  time 
that  the  question  has  been  presented  for  our  decision. 

It  is  declared  by  the  Pub.  Sts.  c.  124,  §  3,  as  follows :  "A  wife  shall 
be  entitled  to  her  dower  at  common  law  in  the  lands  of  her  deceased 
husband."  This  chapter  makes  many  provisions  in  regard  to  dower, 
but  there  is  none  which  relates  to  the  question  before  us. 

At  common  law,  "a  woman  is  entitled  to  dower  out  of  all  the  lands 
whereof  her  husband  was  seised  in  fee  simple,  at  any  time  during  the 
coverture."    1  Greenl.  Cruise,  175. 

There  is  no  doubt  that  the  inchoate  right  of  dower  is  an  encum- 
brance upon  land.  Shearer  v.  Ranger,  22  Pick.  447.  The  release  of 
such  a  right  of  dower  is  a  good  consideration  for  a  promise.  Bullard 
v.  Briggs,  7  Pick.  533,  19  Am.  Dec.  292;  Holmes  v.  Winchester,  133 
Mass.  140;  Nichols  v.  Nichols,  136  Mass.  256.  It  is  a  contingent  right, 
which  the  wife  during  coverture  may  have  the  assistance  of  the  court 
to  establish  or  protect.  Burns  v.  Lvnde,  6  Allen.  305 ;  Davis  v.  Weth- 
erell,  13  Allen,  60,  90  Am.  Dec.  177;  Madigan  v.  Walsh,  22  Wis.  501; 
Clifford  v.  Kampfe,  147  N.  Y.  383,  42  N.  E.  1 ;  Buzick  v.  Buzick,  44 
Iowa,  259,  24  Am.  Rep.  740.  So,  too,  a  wife  having  an  inchoate  right 
of  dower  may  maintain  a  bill  in  equity  to  redeem  land  from  a  mortgage 
in  which  she  has  joined  with  her  husband  to  release  dower.  Davis  v. 
Wetherell,  13  Allen,  60;  Lamb  v.  Montague,  112  Mass.  352.  See  Pub. 
Sts.  c.  124,  §  5.  But  if  the  mortgage  contains  a  power  of  sale,  and  the 
wife  has  joined  in  the  deed  with  her  husband  in  release  of  her  dower,  a 
sale  of  the  land  in  pursuance  of  the  power  bars  all  claim  and  possibility 
of  dower.    Pub.  Sts.  c.  181,  §  19. 

While  a  wife  may,  under  Pub.  Sts.  c.  124,  §  6,  bar  her  right  of  dower 
by  releasing  the  same  in  a  deed  executed  by  her  husband,  or  by  a  subse- 
quent deed  executed  either  separately  or  jointly  with  her  husband,  yet 
she  cannot  convey  her  inchoate  right  of  dower  to  a  person  to  whom 
her  husband  has  not  conveyed  the  land.  Such  a  deed  is  void.  Mason 
V.  Mason,  140  Mass.  63,  3  N.  E.  19.  See  also  Reiff  v.  Horst,  55  Md. 
42.  In  Mason  v.  Mason,  it  was  said  by  Mr.  Justice  Devens :  "While 
the  inchoate  right  of  dower  is  a  vested  right  of  value,  dependent  on  the 
contingency  of  survivorship,  it  is  not  that  separate  property  which 
passes  by  conveyance,  but  a  right  which  one  entitled  thereto  may,  un- 
der certain  circumstances,  release.  It  is  of  a  peculiar  character,  and, 
before  assignment,  the  wife  has  no  seisin."  While  the  word  "vested" 
is  used  in  this  case,  it  would  seem  that  the  word  "contingent,"  which 
was  used  by  Chief  Justice  Parker  in  Bullard  v.  Briggs,  7  Pick.  533, 
539,  19  Am.  Dec.  292,  would  more  accurately  describe  the  nature  of  the 
estate.  After  an  assignment  of  dower  is  made,  the  widow  acquires  no 
new  freehold,  her  seisin  being  deemed  in  contemplation  of  law  a  con- 


614  DERIVATIVE  TITLES  (Part  2 

tinuation  of  her  husband's  seisin.  Windham  v.  Portland,  4  Mass.  384, 
388. 

Even  after  the  death  of  the  husband,  a  creditor  cannot  at  law  attach 
the  right  of  the  widow  to  have  her  dower  assigned  to  her,  or  take  the 
same  on  execution.  McMahon  v.  Gray,  150  Mass.  289,  22  N.  E.  923,  5 
L.  R.  A.  748,  15  Am.  St.  Rep.  202.  Until  dower  has  been  assigned  to 
her,  a  widow  has  no  estate  in  the  land  of  her  deceased  husband.  Smith 
V.  Shaw,  150  Mass.  297,  22  N.  E.  924;  State  v.  Wincroft,  76  N.  C.  38. 
Nor  can  she  object  to  a  partition  of  the  land  among  the  tenants  in 
common.  Motley  v.  Blake,  12  Mass.  280;  Ward  v.  Gardner,  112 
Mass.  42. 

There  can  be  no  doubt  that  the  inchoate  right  of  the  wife  is  always 
subject  to  any  encumbrance  or  infirmity  in  the  husband's  title  existing 
at  the  time  he  became  seised ;  and  we  are  also  of  opinion  that  it  is 
subject  to  any  incident  attached  to  it  by  law.  The  land  may  be  sold 
on  a  petition  for  partition,  if  the  husband  is  a  tenant  in  common.  Pub. 
Sts.  c.  178,  §  65.  When  this  happens,  it  has  been  held  in  a  well  con- 
sidered case  in  Indiana  that  the  wife  is  not  a  necessary  party  to  the 
partition  proceedings,  and  is  not  entitled  to  share  in  the  fund  derived 
from  the  sale.  Haggerty  v.  Wagner,  148  Ind.  625,  48  N.  E.  366,  39 
h.  R.  A.  384. 

Land  may  be  sold  for  taxes,  and  if  there  is  a  surplus  it  is  to  be  paid 
"to  the  owner  of  the  estate."  Pub.  Sts.  c.  12,  §  35 ;  St.  1888,  c.  390,  § 
40.  In  a  case  arising  under  a  New  York  statute,  which  directed  that 
any  surplus  arising  on  a  tax  sale  "shall  be  held  for  the  use  of  and  paid 
over  to  the  person  legally  entitled  upon  his  establishing  his  right  there- 
to," it  was  held  that  the  owner  of  the  land  was  entitled  to  the  surplus. 
People  V.  Palmer,  10  App.  Div.  395,  41  N.  Y.  Supp.  760.  It  was  also 
held  in  this  case  that  the  interest  which  the  wife  of  the  owner  had  in 
the  land  by  virtue  of  her  inchoate  right  of  dower,  although  a  valuable 
interest,  was  not  an  "estate"  in  the  land  which  would  give  her  a  right 
to  redeem  from  the  tax  sale,  under  a  statute  giving  a  right  to  redeem 
to  "any  person  or  persons  having  an  estate  in,  or  any  mortgagee  of" 
any  land  sold  for  taxes. 

It  is  also  an  incident  of  land  that  it  is  liable  to  be  taken  by  the  right 
of  eminent  domain,  and  we  are  of  opinion  that  when  it  is  so  taken  in 
the  lifetime  of  the  husband,  the  wife  is  not  entitled,  on  account  of  her 
inchoate  right  of  dower,  to  have  any  portion  of  the  money  received  for 
the  land  either  paid  to  her  directly,  or  set  aside  for  her  benefit  on  the 
contingency  of  her  surviving  her  husband.  If  the  land  had  not  been 
taken,  the  husband  could  have  done  what  he  pleased  with  it  during  his 
life.  He  might  have  sold  it  for  its  full  value,  yet  the  wife  could  not 
interfere,  or  deprive  him  of  the  use  of  any  part  of  the  purchase  money. 
In  case  the  husband  survived  the  wife,  the  purchaser  would  have  a  good 
title,  which  the  heirs  of  the  wife  could  not  interfere  with.  If  the  chief 
value  of  the  estate  should  consist  of  a  building  on  the  land,  which  was 
insured  by  the  husband,  and  the  building  should  be  destroyed  by  fire. 


Ch.  5)  ESTATES  CREATED  615 

no  one  would  contend  tliat  the  wife  had  any  interest  in  the  insurance 
money,  or  that  a  court  of  equity  would  compel  a  part  of  the  money  to 
be  set  aside  for  her  benefit  unless  the  husband  would  agree  to  rebuild 
the  house.  Again,  if  a  parcel  'of  land  should  be  washed  away  by  the 
negligent  maintaining  of  a  dam,  and  the  owner  of  the  land  should 
recover  as  damages  the  full  value  of  the  land,  would  not  the  money  so 
received  be  his  to  do  with  as  he  pleased? 

The  only  case  in  support  of  the  doctrine  contended  for  by  the  peti- 
tioner which  has  been  decided  by  a  court  of  last  resort  is  that  of  Wheel- 
er V.  Kirtland,  27  N.  J.  Eq.  534,  decided  in  1875  by  the  Court  of  Errors 
and  Appeals  in  New  Jersey.  It  laid  down  a  new  doctrine,  which  has 
not  since  been  recognized  except  by  a  court  of  inferior  jurisdiction, 
and  which  we  are  of  opinion  is  opposed  to  sound  principles. 

The  case  of  Wheeler  v.  Kirtland  was  partly  decided  on  the  ground 
that  the  rule  laid  down  in  Moore  v.  New  York,  8  N.  Y.  110,  59  Am. 
Dec.  473,  had  been  repudiated  or  modified  in  later  decisions  in  that 
State,  citing  In  re  Central  Park  Extension,  16  Abb.  Prac.  56,  68,  and 
Simar  v.  Canaday,  53  N.  Y.  298,  13  Am.  Rep.  523.  In  Moore  v.  New 
York,  8  N.  Y,  110,  59  Am.  Dec.  473,  lands  in  which  the  wife  had  an 
inchoate  right  of  dower  were  taken  by  the  right  of  eminent  domain. 
After  the  husband's  death,  his  wife  claimed  dower  in  them.  The  stat- 
ute under  which  the  land  was  taken  authorized  commissioners  to  make 
"a  just  estimate  of  the  damage  to  the  respective  owners,  lessees,  par- 
ties, and  persons  respectively  entitled  unto  or  interested  in  the  hands." 
It  was  said  by  Gardiner,  J. :  "The  question  is  whether  the  possibility 
of  dower  accruing  to  the  wife  after  marriage,  but  before  the  death  of 
the  husband,  is  an  interest  in  law,  within  the  purview  of  this  statute. 
*  *  *  Such  a  possibility  may  be  released,  but  it  is  not,  it  is  be- 
lieved, the  subject  of  grant  or  assignment,  nor  is  it  in  any  sense  an  in- 
terest in  real  estate." 

It  was  held  in  In  re  Central  Park  Extension,  16  Abb.  -Prac.  56,  69,  on 
the  authority  of  Moore  v.  New  York,  that  the  inchoate  right  of  dower 
was  not  an  interest  in  real  estate,  Judge  Ingraham,  however,  added, 
after  quoting  the  remarks  of  Gardiner,  J. :  "It  might  have  been  added 
to  that  case,  that  the  right  was  transferred  from  the  land  to  the  money 
received  for  the  land  by  the  husband,  if  the  wife  survived  him." 

The  case  of  Simar  v.  Canaday,  53  N.  Y.  298,  13  Am.  Rep.  523, 
merely  decides  that,  if  a  husband  is  induced  to  part  with  his  land  by 
fraud,  his  wife  has  such  an  interest  that  she  can  join  witli  him  in  an 
action  against  the  fraudulent  purchaser. 

The  rule  laid  down  in  Moore  v.  New  York,  so  far  from  being  re- 
pudiated or  modified  in  that  State  by  later  decisions,  has  been  recog- 
nized and  affirmed  by  the  Court  of  Appeals,  Witthaus  v.  Schack,  105 
N.  Y.  332,  11  N.  E.  649,  where  it  is  said  by  Ruger,  C.  J. :  "The  settled 
theory  of  the  law  as  to  the  nature  of  an  inchoate  right  of  dower  is  that 
it  is  not  an  estate  or  interest  in  land  at  all,  "but  is  a  contingent  claim 
arising  not  out  of  contract,  but  as  an  institution  of  law,  constituting 


616  DERIVATIVE  TITLES  (Part  2 

a  mere  chose  in  action  incapable  of  transfer  by  grant  or  conveyance, 
but  susceptible  only  during  its  inchoate  state  of  extinguishment.  By 
force  of  the  statute  this  is  effected  by  the  act  of  the  wife  in  joining 
with  her  husband  in  the  execution  of  a  deed  of  the  land.  Such  deed, 
so  far  as  the  wife  is  concerned,  operates  as  a  release  or  satisfaction  of 
the  interest  and  not  as  a  conveyance,  and  removes  an  encumbrance  in- 
stead of  transferring  an  interest."  See  also  Hammond  v.  Pennock,  61 
N.  Y.  145,  158. 

The  only  case  which  has  been  brought  to  our  attention  that  has  fol- 
lowed Wheeler  v.  Kirtland  is  In  re  New  York  &  Brooklyn  Bridge,  75 
Hun,  558,  27  N.  Y.  Supp.  597,  and  89  Hun,  219,  34  N.  Y.  Supp.  1002. 
But  the  view  taken  of  the  nature  of  the  inchoate  right  of  dower  in 
this  case  does  not  seem  to  be  in  conformity  with  the  cases  above  cited 
from  the  higher  courts  of  New  York. 

In  the  cases  of  Bonner  v.  Peterson,  44  111.  253,  and  In  re  Hall's  Es- 
tate, L.  R.  9  Eq.  179,  cited  by  the  plaintiff,  the  husband  had  died,  and 
the  widow's  right  of  dower  was  no  longer  inchoate  when  the  land  was 
taken. 

For  the  reasons  before  stated,  we  are  of  opinion  that  the  bill  should 
be  dismissed.    So  ordered.^* 


CRENSHAW  v.  MOORE. 
(Supreme  Court  of  Tennessee,  1911.    124  Tenn.  528,  137  S.  W.  924.) 

Lansdun,  J.  William  R.  Moore  died  in  Shelby  county  testate,  and 
his  widow,  Mrs.  Charlotte  Blood  Moore,  dissented  from  his  will. 
Such  proceedings  were  had  in  the  county  court  of  Shelby  county  that 
she  was  assigned  a  year's  support,  to  the  value  of  $20,000,  and  dower 
of  one-third  of  his  real  estate.  The  complainant  brought  this  suit  to 
collect  from  her  an  inheritance  or  succession  tax  on  both  her  year's 
support  and  dower,  under  the  act  of  1893  (Shannon's  Code,  section 
724),  as  amended  by  chapter  479  of  the  Acts  of  1909. 

The  act  of  1893  imposed  a  tax  upon  "all  estates,  real,  personal,  and 
mixed,  of  every  kind  whatsoever,  situated  within  this  State,  whether 

2  6  Cf.  French  v.  Lord,  69  Me.  5.S7  (1S79) ;  Borough  of  York  v.  Welsh.  117  Pa. 
174,  11  Atl.  390  (1SS7).  See  Benton  v.  City  of  St.  Louis,  217  Mo.  687,  118  S. 
W.  418,  129  Am.  St.  Rep.  5G1  (190S). 

In  BroAvn  v.  Brown,  82  N.  J.  Eq.  40,  88  Atl.  186  (1913),  the  court  entertained 
a  bill  in  equity  by  a  wife  to  protect  her  inchoate  dower  in  certain  lands  held 
by  the  defendant  in  trust  for  her  husband  against  a  possible  conveyance  to  an 
innocent  purchaser.  See,  too,  Brown  v.  Brown,  94  S.  C.  492,  78  S.  E.  447  (1913). 
where  it  was  held  that  under  some  circumstances  a  court  of  equity  would  inter- 
fere to  protect  a  wife's  inchoate  dower  against  waste.  But  see  Rumsey  v.  Sul- 
livan, 166  App.  Div.  246,  150  N.  Y.  Supp.  287  (1914). 

In  Whiting  v.  Whiting  (Me.)  96  Atl.  500  (1916),  the  plaintiff,  who  had  been 
induced  by  fraudulent  representatiois  of  her  husband  to  join  in  a  deed  of  his 
land,  was  held  entitled  to  maintain  a  bill  in  equity  against  him  to  have  him 
declared  a  trustee  of  a  certain  portion  of  tlie  purchase  price  for  her  benefit. 
The  plaintiff's  only  interest  in  the  laud  was  her  contingent  interest  provided 
for  by  the  statute  in  place  of  the  common-law  dower. 


Ch.  5)  ESTATES  CREATED  617 

the  person  or  persons  dying  seized  thereof  be  domiciled  within  or  out 
of  this  State,  passing  from  an)'  person  who  may  die  seized  or  possessed 
of  such  estates,  either  by  will  or  under  the  intestate  laws  of  this  State, 
or  any  part  of  such  estate  or  estates,  or  interest  therein,  transferred 
by  deed,  grant,  bargain,  gift,  or  sale,  made  in  contemplation  of  death, 
or  intended  to  take  effect  in  possession  or  enjoyment  after  the  death 
of  the  grantor  or  bargainor,"  passing  to  collateral  kindred  of  the  own- 
er ;  and  section  20,  ch.  479,  Acts  of  1909,  provided  "that  inheritances 
not  taxed  under  the  present  laws  shall  pay  a  tax  as  follows :  All  in- 
heritances of  $5,000  and  over,  but  less  than  $20,000,  a  tax  of  one  per 
centum  of  their  value.  All  inheritances  of  $20,000  and  over,  a  tax 
of  one  and  one-fourth  per  centum  of  their  value,  to  be  collected  by 
the  county  clerk  of  each  county." 

This  is  a  privilege  tax  imposed  on  the  right  of  acquiring  property 
by  succession.  State  v.  Alston,  94  Tenn.  674,  30  S.  W.  750,  28  L- 
R.  A.  178;  Knox  v.  Emerson,  123  Tenn.  409,  131.  S.  W.  972.  Like- 
wise it  is  a  special  tax,  and  the  rule  is  that  laws  imposing  such  taxes 
are  to  be  construed  strictly  against  the  government,  and  favorably  to 
the  taxpayer.  English  v.  Crenshaw,  120  Tenn.  531,  110  S.  W.  210,. 
17  L.  R.  A.  (N.  S.)  753,  127  Am.  St.  Rep.  1025. 

The  widow's  year's  support  is  given  her  by  statutory  provision, 
which  is  found  in  sections  4020  and  4021  of  Shannon's  Code.  It  is 
inconceivable  that  the  legislature  intended  to  levy  the  tax  in  question 
upon  this  bounty  of  the  widow,  given  her  by  the  law  out  of  her  hus- 
band's personal  estate.  She  does  not  succeed  to  the  husband's  title 
to  the  property  set  apart  to  her  as  a  year's  support,  but  acquires  it  ad- 
versely to  his  administrator  by  virtue  of  the  statute.  By  the  act  of 
separation  of  the  personalty  assigned  to  her  by  the  commissioners,  and 
the  subsequent  confirmation  of  their  report  by  the  court,  the  title  to  the 
specific  property  thus  set  apart  becomes  absolutely  vested  in  the  widow. 
The  obvious  intention  of  the  legislature  in  passing  this  statute  was  to 
provide  a  temporary  support  for  her  and  her  family  immediately  on 
the  death  of  her  husband.  It  is  an  extension  by  law  of  her  right  of 
support  out  of  the  personal  estate  of  her  husband  for  one  year^after 
his  deatli,  and  is  founded  in  a  sound  public  policy,  which  has  for  its 
purpose  a  conservation  of  the  family  upon  the  death  of  the  husband. 
The  widow  does  not  succeed  to  the  right  of  the  husband,  nor  does  she 
take  the  property  under  the  intestate  laws  of  this  State.  It  is  a  spe- 
cial provision  made  for  her  in  the  law  for  the  support  of  herself  and 
her  family.  Bavless  v.  Bayless,  4  Cold.  363  ;  Railway  Co.  v.  Kennedy, 
90  Tenn."  185,  16  S.  W.  113. 

Nor  do  we  think  that  the  widow's  dower  is  subject  to  this  tax.  By 
the  common  law,  if  a  husband  acquire  an  estate  which  is  subject  to 
descend  to  his  heirs,  the  wife,  at  the  same  time  the  husband  acquires 
his  title,  has  vested  in  her  the  right  of  dower ;  and  although  the  hus- 
band aliened  the  estate,  the  wife's  dower  would  attach.  By  the  acts  of 
1784  and  1823,  carried  into  Shannon's  Code  at  section  4139,  the  widow 


618  DERIVATIVE  TITLES  (Part  2 

is  dowable  in  one-third  part  of  all  the  lands  of  which  her  husband 
died  seized  and  possessed,  or  of  which  he  was  equitable  owner.  In 
all  other  respects,  the  widow's  right  of  dower  in  this  State  is  the  same 
as  it  was  at  common  law.  It  has  the  same  qualities  as  the  common- 
law  right  of  dower,  but  its  quantity  was  cut  down  by  the  statutes  re- 
ferred to.  This  right  originates  with  the  marriage.  It  is  an  incum- 
brance upon  the  title  of  the  heir  at  law,  and  is  superior  to  the  claims 
of  the  husband's  creditors.  Its  origin  is  so  ancient  that  neither  Coke 
nor  Blackstone  can  trace  it,  and  it  is  as  "widespread  as  the  Christian 
religion  and  enters  into  the  contract  of  marriage  among  all  Christians." 

"By  a  fiction  of  law,  the  estate  in  dower  relates  to  the  marriage. 
It  is  adjudged  in  Ful wood's  Case,  4  Co., 65,  that  the  widow  shall 
hold  her  dower  discharged  from  all  judgments,  leases,  mortgages,  or 
other  incumbrances  made  by  her  husband  after  the  marriage,  because 
her  title,  being  consummated  by  his  death,  has  relation  to  the  time  of 
the  marriage,  and,  of  course,  is  prior  to  all  other  titles.  She  claims  by 
and  through  her  husband,  has  the  oldest  title,  is  under  him  for  the 
valuable  consideration  of  marriage,  the  best  respected  in  the  law,  and 
cannot  be  disturbed  by  any  other  claiming  under  the  husband."  Combs 
V.  Young,  4  Yerg.  226,  26  Am.  Dec.  225. 

The  preamble  to  the  act  of  1784,  which  was  the  first  passed  in  this 
State  reducing  the  quantity  of  the  widow's  dower  estate,  recites,  in 
substance,  that  the  dower  allotted  by  law  in  lands  for  widows,  in  the 
then  unimproved  state  of  the  country,  was  a  very  inadequate  provision 
for  the  support  of  such  widows;  that  it  was  only  just  and  reasonable 
that  those  who,  by  their  prudence,  economy,  and  industry  had  con- 
tributed to  raise  up  an  estate  to  their  husbands,  should  be  entitled  to 
share  in  it — thus  showing  that  the  legislature  recognized  that  the 
widow's  dower  under  this  act  had  the  same  origin  and  was  of  the 
same  quality  as  her  dower  existing  at  common  law. 

So,  it  is  seen  that,  whether  it  be  considered  that  the  widow  holds 
her  dower  in  the  nature  of  a  purchaser  from  her  husband  by  virtue 
of  the  marriage  contract,  or  whether  it  be  merely  a  provision  of  the 
law  made  for  her  benefit,  it  cannot  be  considered  that  her  right  is  in 
succession  to  that  of  her  husband  upon  his  death,  or  that  the  husband 
bestows  it  upon  her  in  contemplation  of  death.  While  it  is  true  that 
her  right  to  dower  is  not  consummated  until  the  death  of  the  husband, 
and  that  it  is  carved  out  of  only  such  realty  as  he  owned  at  his  death, 
it  does  not  follow  from  this  premise  that  the  widow  succeeds  to  his 
title  by  the  intestate  laws.  She  derives  it  by  virtue  of  the  marriage, 
and  in  her  right  as  wife  to  be  consummated  in  severalty  to  her  upon 
tlie  death  of  her  husband.    Boyer  v.  Boyer,  1  Cold.  14. 

The  supreme  court  of  Illinois,  in  Billings  v.  People,  189  111.  472, 
59  N.  E.  798,  59  L.  R.  A.  807,  upon  a  construction  of  the  inheritance 
tax  law  of  that  State,  together  with  tlie  laws  governing  the  descent  and 
distribution  of  the  property  of  persons  dying  intestate  reached  a  dif- 
ferent conclusion  from  that  reached  by  us.     The  reasoning  of  tliat 


Ch.  5)  ESTATES  CREATED  619 

court  is  predicated  chiefly  upon  a  construction  of  the  statutes  of  that 
State,  which  are  essentially  different  from  those  of  this  State.  It  is 
stated,  however,  that,  while  the  husband  cannot  deprive  his  wife  of 
her  inchoate  right  of  dower,  the  State  may,  and  that  she  does  not 
hold  by  contract,  but  holds  by  laws  which  the  State  may  change.  With- 
out undertaking  to  meet  all  of  the  arguments  set  forth  in  support  of 
this  very  able  opinion,  we  are  content  to  hold  that,  under  a  proper 
construction  of  the  statute  in  question,  the  legislature  did  not  intend 
to  tax  the  widow's  dower  as  an  inheritance  from  the  estate  of  her 
husband,  or  a  succession  to  his  rights  therein.  As  stated  heretofore, 
she  does  not  inherit  from  her  husband,  but  derives  her  right  by  virtue 
of  her  marriage,  which  is  consummated  upon  her  husband's  death, 
and  becomes  an  incumbrance  upon  the  inheritance  of  the  heirs  at  law, 
and  is,  to  that  extent,  an  interest  adverse  to  the  inlieritance  from  the 
husband.  For  the  same  reason  she  does  not  succeed  to  the  rights  of 
the  husband.  Her  dower  is  intended  for  her  support  and  maintenance, 
and  an  intention  to  tax  it  will  not  be  imputed  to  the  legislature,  except 
where  the  language  employed  makes  it  plainly  imperative  to  do  so. 

Billings  V.  People,  supra,  is  the  only  case  cited  by  counsel  which 
discusses  the  question  at  issue  in  any  way,  and  no  case  is  cited  dis- 
cussing the  liability  of  the  widow's  year's  support  for  the  tax  involved 
here.  But,  upon  reason,  we  are  content  to  hold  that  neither  the  year's 
support  nor  dower  is  subject  to  the  tax.  It  results  that  the  decree  of 
the  court  below  is  affirmed,  with  costs.^^ 


INGRAM  V.  MORRIS. 
(Superior  Court  of  Delaware,  1844.    4  Har.  111.) 

Summons  in  dower.  Plea,  that  the  land  was  sold  on  a  judgment 
against  the  husband,  which  was -a  lien  thereon  at  the  time  of  the  mar- 
riage.   Replication  and  issue. 

It  was  admitted  that  Samuel  Ingram  was  seized  of  an  estate  of  in- 
heritance in  the  premises  at  the  time  of  the  marriage.  The  judgment 
upon  which  the  land  was  sold  bore  date  on  the  same  day  of  the  mar- 
riage, and  there  was  no  evidence  which,  in  pwint  of  time,  preceded  the 
other.  Yet  the  title  of  the  widow  of  Samuel  Ingram  to  dower  de- 
pended on  this  question;  for  if  the  judgment  was  a  subsisting  judg- 
ment at  the  time  of  the  marriage,  the  sale  of  the  land  which  was  after- 
wards made  in  execution  of  that  judgment  discharged  the  land  of 

2  7  See  In  re  Estate  of  Sanford,  91  Neb.  752,  137  N.  W.  SG4  (1912) ;  In  re  Bul- 
len's  Estate  (Utah)  151  Pac.  533  (1915),  ace.  See,  also,  In  re  Estate  of  Strahan, 
93  Neb.  828,  142  N.  VV.  678  (1913),  enlarged  statutory  substitute  for  dower; 
Kohny  v.  Dunbar,  21  Idaho,  258,  121  Pac.  544,  39  I..  R.  A.  (N.  S.)  1107,  Ann.  Cas. 
1913D,  492  (1912),  community  proiierty ;  In  re  Thompson's  Estate,  85  Misc.  Rep. 
291,  147  N.  Y.  Supp.  157  (1914),  tenancy  by  entireties. 


620  DERIVATIVE  TITLES  (Part  2 

dower,  if  the  marriage  took  place  before  the  judgment  was  entered, 
the  wife's  right  to  dower  attached  and  could  not  be  divested  by  a 
judgment  subsequently  entered. 

Ridgely,  for  the  claimant,  argued  that  the  claim  of  dower  was  a 
favored  claim;  and,  in  the  absence  of  evidence,  the  jury  would  imply 
in  favor  of  dower.  He  showed  that  the  judgment  was  entered  on  a 
bond,  dated  many  months  before,  and  argued  that  the  delay  of  enter- 
ing the  judgment  should  be  considered  to  the  prejudice  of  the  party 
claiming  under  it;  that  the  burthen  of  proof  was  on  the  defendant, 
who  pleaded  an  affirmative  plea  in  derogation  of  this  favored  right. 
Jenkins'  Rep.  274 ;  Parke  on  Dower,  2. 

Wootten,  contra,  argued  from  the  fact  of  the  entry  of  judgment  on 
the  day  of  the  marriage,  that  the  inference  should  be  made  that  it 
was  entered  before  the  marriage,  for  the  very  purpose  of  binding  tlie 
land  so  as  to  prevent  the  right  of  dower ;  that  the  common  usage  of 
the  country  was,  for  marriage  to  take  place  in  the  evening,  after  the 
usual  hour  of  doing  business  in  tlie  public  offices ;  and  that  if  the 
marriage  and  entry  of  judgment  were  at  the  same  moment  the  wife 
would  not  be  dowable,  for  his  seizin  otherwise  than  as  subject  to  dower, 
would  be  only  momentary.  And  such  a  seizin  gives  no  right  to  dower. 
1  Johns.  Dig.  518;  Stow  v.  Tifift,  15  Johns.  (N.  Y.)  458,  8  Am.  Dec. 
266. 

The  jury  rendered  a  verdict  for  the  demandant 


GRADY  V.  McCORKLE. 
(Supreme  Court  of  Missouri,  1874.     57  Mo.  172,  17  Am.  Rep.  676.) 

Wagner,  J.,  delivered  the  opinion  of  the  court. 

This  was  a  suit  commenced  in  the  Circuit  Court  of  Howard  county, 
against  the  defendants,  the  widow  and  heirs  of  Leonard  Grady,  de- 
ceased, for  the  assignment  of  dower  in  certain  real  estate.  From  the 
record  it  appears,  that  in  the  year  1859,  William  Grady,  the  plaintiff's 
husband,  was  seized  of  the  land  in  controversy,  and  agreed  with  his 
son,  Leonard  Grady,  that  if  he  would  go  on  the  land  and  improve  it, 
he  would  convey  the  same  to  him  by  deed,  by  way  of  advancement, 
and  charge  him  with  its  value  at  the  time  he  took  possession. 

Under  this  agreement  Leonard  took  possession  of  the  land  and  made 
improvements  on  the  same,  and  continued  to  reside  on  and  cultivate  it 
up  to  the  time  of  his  death. 

William  Grady  died  without  having  conveyed  the  land  according  to 
the  agreement,  and  without  having  fixed  any  price  thereon,  to  be 
charged  as  an  advancement. 

In  the  year  1865,  after  the  death  of  William  and  Leonard,  the  fa- 
ther and  son,  the  widow  and  heirs  at  law  of  Leonard,  who  are  the 
defendants  in  the  present  case,  filed  their  petition  in  the  Circuit  Court 


Ch.  5)  ESTATES   CREATED  621 

against  the  plaintiff  and  the  heirs  of  William,  setting  out  the  facts 
as  above  stated,  and  praying  the  court  to  decree  that  the  land  should 
be  held  by  them  as  the  widow  and  heirs  of  Leonard,  as  if  the  same 
had  been  conveyed  to  him  by  William  in  his  life  time,  and  to  fix  a 
valuation  thereon,  at  which  they  should  be  charged  for  the  same. 

In  this  proceeding  plaintiff  v)as  duly  served  with  process,  but  made 
no  answer.  The  court  made  a  decree  in  accordance  with  the  prayer 
of  the  petition,  declaring  that  the  land  "described  be,  and  the  same 
is  hereby  vested  in  the  plaintiffs,  to  be  held  by  them  as  if  the  same 
had  been  conveyed  by  said  William  Grady  in  his  life  time,  to  the  said 
Leonard  Grady,  and  that  the  title  of  defendants,  as  the  widow  and 
heirs  of  William  Grady  be  divested." 

The  court  below  held  that  this  decree  barred  the  plaintiff,  the  widow 
of  William  Grady,  from  having  any  dower  in  the  premises,  and  this 
is  the  only  question  in  the  case. 

The  statute  provides  that  "every  widow  shall  be  endowed  of  the 
third  part  of  all  tlie  lands  whereo-f  her  husband,  or  any  other  person 
to  his  use,  was  seized  of  an  estate  of  inheritance,  at  any  time  during 
the  marriage,  to  which  she  shall  not  have  relinquished  her  right  of 
dower,  in  the  manner  prescribed  by  law,  to  hold  and  enjoy  during 
her  natural  life."     1  Wagn.  Stat.  p.  538,  §  L 

The  right  of  dower  attaches  whenever  there  is  a  seizin  by  the  hus- 
band during  the  marriage,  and  unless  it  is  relinquished  by  the  wife 
in  the  manner  prescribed  by  law,  it  becomes  absolute  at  the  husband's 
death.  After  the  right  of  dower  has  once  attached,  it  is  not  in  the 
power  of  the  husband  alone  to  defeat  it  by  any  act  in  tlie  nature  of 
an  alienation  or  charge.  It  is  a  right  in  law,  fixed  from  the  moment 
the  facts  of  marriage  and  seizin  concur,  and  becomes  a  title  paramount 
to  that  of  any  person  claiming  under  the  husband  by  subsequent  act. 
Co.  Litt.  32a. 

The  alienation  of  the  husband,  therefore,  whether  voluntary,  as  by 
deed  or  will,  or  involuntary,  by  proceedings  against  him  or  otherwise, 
will  confer  no  title  on  the  alienee,  as  against  the  wife  in  respect  of  her 
dower. 

It  is  a  necessary  consequence  of  this  rule,  that  all  charges  or  deriva- 
tive interest  created  by  the  husband,  subsequent  to  the  attachment  of 
the  wife's  right,  are  voidable  as  to  that  part  of  the  land  which  is  re- 
covered in  dower.  As  the  husband  cannot  defeat  his  wife's  dower  by 
any  alienation  of  the  land  by  himself  alone,  so  neither  can  he  bind 
her  by  any  modification  of  the  nature  of  the  seizin,  nor  by  any  merger 
or  extinguishment  produced  by  his  own  act  without  her  concurrence. 
Scribn.  Dower,  577. 

In  conformity  with  these  principles,  it  has  been  held  that  if  a  woman, 
after  she  becomes  a  widow,  is  made  a  party  to  a  suit  to  foreclose  a 
mortgage  executed  by  the  husband  alone,  and  no  allegation  be  made 
in  the  petition  in  reference  to  her  claim  for  dower,  the  decree  will  not 
be  considered  as  affecting  her  dower  estate.     Lewis  v.  Smith,  9  N, 


622  DERIVATIVE  TITLES  (Part  2 

Y.  502,  61  Am.  Dec.  706;  Thompson  v.  Reeve,  12  Mo.  157;  Crenshaw 
V.  Creek,  52  Mo.  98;    Freem.  Judg.  §  303. 

Neither  the  petition  nor  the  decree  in  the  case  of  Leonard  Grady's 
widow  and  heirs  v.  WiHiam  Grady's  widow  and  heirs,  made  any  men- 
tion of  the  subject  of  dower,  nor  was  it  at  all  litigated  or  drawn  in 
question.  The  whole  object,  extent  and  scope  of  that  proceeding  was 
to  have  the  agreement  and  undertaking  of  William  Grady  specifically 
performed.  The  rights  against  the  widow  and  heirs  were  precisely 
the  same  as  they  would  have  been  against  William  Grady,  had  he 
been  alive  and  made  a  party  to  the  suit.  But  a  suit  against  him  would 
not  have  affected  his  wife's  right  to  dower,  without  any  concurring  act 
on  her  part.  The  decree  divested  his  title  out  of  the  widow  and  heirs, 
and  vested  it  in  the  widow  and  heirs  of  his  son.  Nothing  more  was 
attempted  and  nothing  more  was  done. 

The  question  of  the  plaintiff's  right  of  dower' was  neither  raised  nor 
decided,  and  was  not  made  a  subject  of  adjudication  in  the  suit  for 
specific  performance.  The  plaintiff  did  not  answer,  and  although  she 
was  perhaps  properly  made  a  party,  my  conclusion  is,  that  she  is  not 
barred  from  claiming  her  dower  interest  in  the  land — she  having  done 
nothing  to  relinquish  the  same. 

Wherefore  the  judgment  must  be  reversed  and  the  cause  remanded; 
the  other  judges  concur.^ ^ 


CATLIN  V.  WARE. 
(Supreme  Judicial  Court  of  Massachusetts,  1812.     9  Mass.  218,  6  Am.  Dec.  56.) 

This  was  a  writ  of  dower,  to  which  the  tenant  pleaded  in  bar:  1st 
That  the  demandant's  husband  Joseph  Catlin  was  never  seized,  &c.  on 
which  issue  was  joined.  2d  That  the  said  Joseph,  being  seized  in  his 
demesne  as  of  fee,  on  the  28th  day  of  March,  1793,  by  his  deed  of 
that  date  duly  acknowledged,  &c.  for  a  valuable  consideration,  bar- 
gained and  sold  the  same  land,  in  which  the  demandant  claims  her 
dower,  to  one  David  Horton  in  fee  simple ;  and  that  the  said  Abigail, 
by  the  consent  of  her  husband,  for  the  consideration  in  the  said  deed 
expressed,  and  also  of  one  dollar  paid  her  by  the  said  David,  assented 
and  agreed  to  the  same  deed  of  the  said  Joseph,  and  then  and  there  by 
her  act  and  consent,  signified  by  her  affixing  her  seal  to  the  said  deed, 
and  subscribing  her  mark  thereto,  she  being  unable  to  write  her  name, 
barred  herself  of  all  right  of  dower  in  the  same  premises  and  every 
part  thereof :  by  virtue  whereof  the  said  David  became  seized  in  fee 
of  the  same  premises,  free  and  exempt  from  all  claim,  demand  or  right 
of  dower  of  the  said  Abigail  therein. 

2  8  Cf.  Phillips  V.  Phillips,  30  Colo.  516,  71  Pac.  363  (1903) ;  Ligare  v.  Semple, 
32  Mich.  438  (1875).     But  see  Bennett  v.  Harms,  51  Wis.  251,  8  N.  W.  222  (18S1). 


Ch.  5)  ESTATES  CREATED  623 

The  demandant  replied,  that  she  did  not  by  her  act  and  consent 
signified,  &c.  bar  herself,  &c.  and  tendered  an  issue  to  the  country, 
which  was  joined  by  the  tenant. 

The  several  issues  thus  joined  were  tried  at  the  last  April  term  of 
this  court  in  this  county,  before  Sedgwick,  J.,  from  whose  report  it 
appears,  that  the  seisin  of  the  demandant's  husband  and  her  coverture 
were  agreed,  as  alleged  in  the  writ. 

The  tenant  produced  the  deed  of  Joseph  Catlin  to  David  Horton, 
mentioned  in  the  pleadings.  It  purported  a  conveyance  in  fee  of  the 
land,  in  which  dower  is  demanded,  and  to  it,  after  the  name  and  seal 
of  her  husband,  were  set  the  demandant's  seal  and  mark.  But  her 
name  was  not  otherwise  mentioned  in  the  deed,  nor  were  there  any 
words  tlierein  purporting  or  implying  a  release  of  her  right  of  dower. 
The  deed  was  acknowledged  by  tlie  husband,  and  recorded ;  but  there 
was  no  acknowledgment  by  the  wife. 

On  the  part  of  the  tenant  it  was  insisted  at  the  trial,  that  the  latter 
issue  was  proved  on  his  behalf.  But  the  judge  directed  a  verdict  on 
both  issues  in  favour  of  the  demandant;  referring  to  the  decision  of 
the  court,  the  question  whether  that  direction  was  right. 

It  was  also  referred  to  the  court  to  determine  any  question  which 
might  arise  from  the  finding  of  the  jury,  respecting  the  improved 
value  of  the  land :  the  improvements  having  arisen  from  ditching  the 
land,  making  walls,  and  erecting  and  improving  buildings. 

The  jury  returned  a  verdict  conformably  to  the  directions  of  the 
judge;  assessed  the  demandants'  damages  at  49  dollars  50  cents;  and 
certified  that  the  improvements  made  upon  the  demanded  premises, 
since  the  conveyance  thereof  by  Joseph  Catlin,  were  at  the  rate  of 
fifty  per  cent. 

Curia.  Two  objections,  made  to  the  deed  read  in  evidence  at  the 
trial  of  this  cause,  have  been  replied  to  by  the  counsel  for  the  tenant. 

As  to  the  second,  the  want  of  an  acknowledgment  by  the  wife,  we 
think  an  acknowledgment  unnecessary  in  the  case.  One  party  to  a 
deed  acknowledging  it  gives  notoriety  to  it,  and  that  is  the  wnole  that 
is  necessary.  Though  a  deed  be  acknowledged  and  recorded,  yet  on 
the  issue  of  non  est  factum  the  execution  of  the  deed  is  still  to  be 
proved,  as  if  it  had  not  been  acknowledged.  Neither  was  an  acknowl- 
edgment by  the  wife  necessary  in  order  to  make  the  deed  binding  on 
her.  She  must  know  her  own  acts,  and  is  bound  by  such,  as  the  law 
authorizes  her  to  execute. 

The  other  objection  to  this  deed  has  much  more  weight  in  it,  and 
is  indeed  fatal  to  the  defence  of  the  action.  A  deed  cannot  bind  a  party 
sealing  it,  unless  it  contains  words  expressive  of  an  intention  to  be 
bound.  In  this  case,  whatever  may  be  conceived  of  the  intention  of 
the  demandant  in  signing  and  sealing  the  deed,  there  are  no  words 
implying  her  intention  to  release  her  claim  of  dower  in  the  lands  con- 
veyed which  must  have  been,  to  give  it  that  operation.    It  was  merely 


624  DERIVATIVE  TITLES  (Part  2 

the  deed  of  the  husband,  and  the  wife  is  not  by  it  barred  of  her  right 
to  dower.^® 

As  to  the  question  referred  to  us,  respecting  the  increased  value  of 
the  lands,  in  which  the  demandant  claims  her  dower,  as  they  have 
arisen  from  the  labours  and  expense  of  the  purchaser,  it  is  our  opin- 
ion that  she  is  entitled  to  her  third  part  of  the  land,  in  the  condition 
it  was  in  at  the  time  of  the  alienation  by  her  husband.  Had  the  heir 
of  the  husband  been  the  tenant,  and  the  improvements  been  made  by 
him  after  the  land  descended,  it  would  have  been  otherwise ;  for  it 
was  his  folly  not  to  assign  the  dower  to  the  widow,  before  he  made 
the  improvements.^** 

Judgment  on  the  verdict. 


ROBINSON  V.  BATES. 
(Supreme  Judicial  Court  of  Massachusetts,  1841.    3  Mete.  40.) 

Writ  of  Dower,  wherein  .the  demandant  claimed  her  dower  in  land 
in  Webster,  in  the  seizin  and  possession  of  the  tenant,  and  counted 
upon  the  seizin  of  her  late  husband,  William  Robinson.  The  action 
was  tried,  on  the  general  issue,  before  Wilde,  J.,  who  reported  the 
case  as  follows : 

The  demandant  proved  her  marriage  with  said  William  in  1792,  his 
seizin  of  the  demanded  premises  from  the  time  of  said  marriage  until 
1816;  the  death  of  said  William  in  1837;  and  a  demand  of  dower, 
made  upon  the  tenant  on  the  11th  of  March,  1840. 

The  tenant  then  introduced  a  judgment  recovered  in  this  court,  at 

29  Cox  V.  Wells.  7  Blackf.  (Ind.)  410,  43  Am.  Dec.  9S  (1845);  Lothrop  v. 
Foster,  51  Me.  307  (1SG3) ;  McFarland  v.  Febiger,  7  Ohio,  194,  pt.  1,  28  Am. 
Dec.  632  (1835),  ace.  Johnson  v.  Montgomery,  51  111.  185  (1S69),  semble  contra. 
«ee  Leanied  v.  Cutler,  18  Picli.  (Mass.)  9  (18.36). 

As  to  the  ability  of  the  husband  and  wife  to  make  an  effective  conveyance 
of  the  wife's  inchoate  dower  alone,  see  Davenport  v.  Gwilliams,  133  Ind.  142, 
31  N.  E.  790,  22  L.  R.  A.  244  (1892).  See,  also,  Hart  v.  Burch.  130  111.  426,  22 
N.  E.  831,  6  L.  R.  A.  371  (1889) ;  INIason  v.  Mason,  140  IMass.  63,  3  N.  E.  19  (1885). 

30  "Nor  is  the  widow's  right  in  lands  which  have  been  alienated  by  the  hus- 
band alone  limited  to  the  value  of  such  lands  at  the  date  of  such  conveyance. 
It  is  to  be  admitted  that  authority  may  be  found  for  such  rule,  but  the  over- 
AVhelming  weight  is  to  the  contrary.  It  is,  of  course,  equitable  in  such  cases 
that  the  widow  shall  not  be  permitted  to  profit  by  an  increase  in  value  due  to 
improvements  and  betterments  made  or  created  by  the  labor  and  money  of  the 
grantee,  who  has  expended  them  in  good  faith,  believing  he  had  a  perfect  title ; 
but  in  all  increase  arising  from  the  general  growth,  prosperity,  and  develop- 
ment of  the  country,  or  from  any  other  source  than  the  labor  and  expense  of 
the  grantee,  she  is  entitled  to  share."  Butler  v.  Butler,  151  Iowa,  583,  58S, 
132  iST.  W.  63  (1011),  per  Weaver,  J.  It  was  accordingly  held  in  that  case  that 
the  court  had  no  jurisdiction  to  hx  a  value  upon  the  inchoate  dower  of  a  wiie 
who  had  not  joined  in  a  deed  of  her  husband  and  decree  that  upon  a  deposit 
of  such  sum  by  the  grantee,  to  abide  the  determination  of  survivorship,  the 
land  should  be  held  free  of  such  dower. 

Occasionally  the  rule  is  laid  down  as  above  quoted,  but  omitting  any  refer- 
iince  to  the  good  faith  of  the  grantee.  In  re  Tomlinson,  9  Del.  Ch.  446,  81  Atl. 
468,  585  (1911).     See  Park  on  Dower,  *256  et  seq. 


Ch.  5)  ESTATES  CREATED  625' 

September  term,  1828,  by  one  Morris  Larned  against  said  William 
Robinson,  and  a  levy,  in  due  form,  in  October,  1828,  of  the  execution 
which  issued  on  said  judgment,  upon  the  demanded  premises :  Also 
a  judgment,  at  the  October  term,  1830,  of  this  court,  in  a  writ  of 
entry  brought  by  said  Larned  to  recover  the  demanded  premises 
of  William  Robinson,  Junior,  and  Sylvanus  Robinson,  then  tenants 
in  possession  thereof,  and  the  writ  of  habere  facias,  issued  on  said 
judgment,  with  the  return  of  an  officer  thereon,  stating  the  delivery 
of  seizin  to  said  Larned  in  November  1831 :  Also  a  deed  of  said  prem- 
ises, afterwards  made  to  the  tenant  by  said  Morris  Larned,  dated  No- 
vember 30th,  1831,  and  duly  acknowledged  and  recorded. 

The  tenant  then  offered  to  prove,  that  in  December,  1816,  said 
William  Robinson,  by  his  deed,  duly  executed  and  recorded,  for  the 
consideration  of  $4,000,  conveyed  the  premises  in  question  to  one  John 
Jacobs,  Junior,  and  that  the  demandant  joined  him  in  said  deed,  and 
released  her  dower  in  said  premises.  The  demandant's  counsel  objected 
to  the  admission  of  this  evidence,  because  the  tenant  did  not  claim 
under  this  conveyance.  But  the  evidence  was  admitted,  upon  the  ten- 
ant's counsel  intimating  that  they  expected  to  prove  this  conveyance 
fraudulent  and  void  as  to  creditors,  and  that,  if  so,  it  would,  by  St. 
1805,  c.  90,  §  5,  bar  the  demandant  of  her  dower.  The  tenant  also 
proved  a  conveyance  of  the  demanded  premises  by  said  Jacobs  to  the 
aforesaid  William  Robinson,  Junior,  and  Sylvanus  Robinson,  by  deed 
duly  executed,  and  recorded  in  February,  1822, 

The  tenant  then  offered  to  introduce  the  abovementioned  judgment 
of  Morris  Larned  against  William  Robinson,  to  prove  that  the  afore- 
said conveyance  from  said  Robinson  to  Jacobs,  in  December,  1816, 
in  which  the  demandant  joined  and  released  her  dower,  was  fraud- 
ulent and  void  as  to  creditors,  and  that  therefore  the  demandant 
was  barred  of  her  dower,  by  force  of  the  statute  aforesaid.  The  de- 
mandant objected  to  the  admission  of  that  judgment  for  this  purpose, 
because  it  was  between  different  parties,  and  not  binding  on  her;  and 
because  it  had  no  tendency,  in  itself  to  prove  fraud  in  said  deed  to 
Jacobs ;  there  being  no  proof  on  what  ground  the  verdict  and  judg- 
ment in  that  case  was  rendered. 

The  judge  ruled  that  said  judgment  could  not  be  admitted  for 
the  purpose  for  which  it  was  offered.  To  this  ruling  the  tenant 
excepted.  A  verdict  was  taken  for  the  demandant,  which  was  to  be 
set  aside  and  a  new  trial  granted,  if  the  court,  should  be  of  opin- 
ion that  the  record  of  said  judgment  was  admissible  for  said  pur- 
pose. 

Wilde,  J.  The  demandant  having  made  out  a  prima  facie  case,  en- 
titling her  to  dower,  the  general  question  is,  whether  the  defence 
set  up  by  the  tenant  is  sufficient  in  law  to  bar  her  claim.  He  relies 
on  a  deed  of  the  premises  in  question  from  William  Robinson,  the 
demandant's  late  husband,  to  one  John  Jacobs,  Junior,  in  which 
Aig.Pbop. — 40 


626  DERIVATIVE  TITLES  (Part  2 

deed  the  demandant  joined,  and  thereby  released  to  the  said  Jacobs  her 
right  of  dower  in  the  premises. 

It  is  admitted,  that  the  tenant  has  no  title  under  Jacobs ;  but  his 
counsel  contends  that  he  has,  by  the  common  law,  a  right  to  plead  in 
bar,  and  under  St.  1836,  c.  272>,  abolishing  special  pleadings,  to  give 
in  evidence  under  the  general  issue,  a  conveyance  by  the  demand- 
ant to  a  third  person  under  whom  he  does  not  claim ;  and  he  relies 
on  the  case  of  Wolcott  v.  Knight,  6  Mass.  418,  and  sundry  other  cases, 
in  which  this  principle  is  laid  down.  "For,"  it  is  said,  "although  the 
tenant  may  have  no  title,  still  if  the  demandant  has  no  right  to  re- 
cover, he  cannot  be  permitted  to  draw  into  question  the  seizin  of  the 
tenant,  whether  he  acquired  it  by  right  or  by  wrong."  Stearns  on  Real 
Actions,  226. 

It  has  been  argued  by  the  counsel  for  the  tenant,  that  this  principle 
is  applicable  to  a  case  of  dower,  where  the  demandant  had  relin- 
quished her  inchoate  right  of  dower  by  joining  her  husband  in  a  con- 
veyance to  a  stranger.  But  the  contrary  doctrine  is  laid  down  in  Pix- 
ley  V.  Bennett,  11  Mass.  298.  And  that  case,  we  think,  was  rightly 
decided. 

The  tenant's  counsel  contended,  that  as  the  demandant  had  once  re- 
leased her  claim,  she  was  for  ever  estopped  to  demand  dower,  who- 
ever may  be  in  possession  of  the  land.  But  it  is  very  clear  that  a  stran- 
ger cannot  be  bound  by,  nor  take  advantage  of,  an  estoppel.  An  estop- 
pel, to  be  binding,  must  be  reciprocal,  and  parties  and  privies  only 
are  bound  thereby. 

Whether  the  demandant's  deed  may  by  law  operate  as  a  release,  or 
in  any  way,  except  by  way  of  estoppel,  is  a  question  which  it  is  not 
necessary  to  decide ;  because,  if  it  may  operate  so  as  to  pass  the  right 
to  the  grantee,  this  action  may  well  be  maintained  for  his  benefit,  or 
for  the  benefit  of  his  assigns ;  as  they  cannot  maintain  an  action  in 
their  own  names,  to  enforce  their  right  against  the  tenant. 

But  there  is  another  answer  to  this  objection  to  the  demandant's 
title,  which  is  entirely  satisfactory  and  conclusive.  The  tenant,  at  the 
trial,  ofifered  to  prove  that  the  conveyance  to  Jacobs, was  fraudulent 
and  void  as  to  the  creditors  of  the  grantor,  and  that,  on  that  ground, 
he  had  recovered  judgment  for  the  possession  of  the  premises  against 
the  assignees  of  the  said  Jacobs.  Now  we  are  of  opinion  that  the 
tenant,  having  avoided  the  deed  to  Jacobs,  cannot  now  be  allowed  to 
set  it  up  as  a  bar  to  the  demandant's  claim.  In  Stinson  v.  Sumner,  9 
Mass.  143,  6  Am.  Dec.  49,  it  was  decided  that  where  a  wife  releases 
her  claim  of  dower,  by  joining  her  husband  in  a  conveyance,  and 
the  purchaser  recovers  back  the  purchase  money  on  account  of  the 
grantor's  defect  of  title  to  the  land,  the  release  of  the  wife  thereby 
becomes  inoperative,  and  does  not  bar  her  right  of  dower  after  her 
husband's  decease.  The  principle,  on  w^hich  that  decision  is  founded, 
applies  conclusively  to  the  present  case.  The  tenant  has  avoided  the 
deed  of  the  husband,  and  defeated  the  estate  on  which  the  demand- 


Ch,  5)  ESTATES  CREATED  627 

ant's  release  of  dower  was  intended  to  operate.  By  law,  therefore, 
and  in  justice,  she  was  thereby  restored  to  her  former  rights. 

The  other  ground  of  defence  depends  on  the  construction  to  be  given 
to  St.  1805,  c.  90,  sec.  5,  which  provides  "that  all  the  lands,  tene- 
ments, and  hereditaments  of  which  the  intestate  died  seized,  and  also 
all  such  estate  which  he  had  fraudulently  conveyed,  with  intent 
to  defraud  his  creditors,  shall  be  liable  for  the  payment  of  his 
debts,  and  may  be  recovered  and  applied  thereto,  saving  to  the 
widow  her  dower  therein ;  except  in  the  estate  so  fraudulently  con- 
veyed, to  which  she  had  legally  relinquished  her  right  of  dower." 
The  execution,  under  which  the  tenant  claims  title,  was  extended  on 
the  premises  in  the  lifetime  of  the  demandant's  husband,  and  is  not 
therefore  within  the  letter  or  the  meaning  of  the  statute,  which  is 
expressly  limited  to  the  lands,  tenements,  and  hereditaments  of  an 
intestate,  and  to  the  proceedings  after  his  death.  If  the  demand- 
ant's dower  is  subject  to  forfeiture,  it  must  be  applied  to  the  equal 
benefit  of  all  the  creditors,  and  the  tenant  has  gained  no  priority  or 
title  under  the  execution,  in  respect  to  the  claim  of  the  demandant. 
Wildridge  v.  Patterson,  15  Mass.  148.  Where  a  statute  in  clear 
terms  is  limited  to  a  certain  class  of  cases,  the  limitation  is  not  to  be 
extended  by  construction,  especially  if  it  would  thereby  subject  an 
estate  to  forfeiture. 

Judgment  on  the  verdict."^ 

31  See  Huntzirker  v.  Crocker,  185  Wis.  38,  11,5  N.  W.  .340,  15  Ann.  Cna  444 
(1908) ;  In  re  Lingafelter,  ISl  Fed.  24,  104  C.  C.  A.  38,  32  L.  K.  A.  (N.  S.)  103 
(1!)10),  where  the  conveyance  was  set  aside  in  bankruptcy  proceedings  because 
preferential.     But  compare  iMiller  v.  Wilson,  15  Ohio,  IDS  (184fi). 

Statutory  Provisions  as  to  Dower.— In  practically  all  of  the  states  there 
are  statutes  relative  to  dower.  These  statutes  vary  in  their  terms  and  scojie, 
and  should  be  consulted  by  the  student.  In  many  states  the  statutes  provide 
for  a  dower  almost,  if  not  wholly,  identical  with  the  common-law  dower.  In  al- 
most an  equal  number  of  states  it  is  declared  by  statute  that  dower  is  abolish- 
ed, and  provision  is*  made,  usually  in  the  chapter  on  TJescenls,  whereby,  upon 
the  death  of  the  husband,  the  widow  shall  take  a  specified  interest  in  his  real- 
ty. I'nder  these  latter  statutes  a  nice  question  may  arise  as  to  the  nature  of 
the  widow's  title;  that  is,  whether  the  common-law  principles  relative  to  dow- 
er have  any  applicability,  or  whetlier  it  is  to  be  treated  pm-ely  as  a  case  of  in- 
heritance. In  Fletcher  v.  Holmes,  32  Ind.  497,  510  (1870),  the  court  said :  "It 
seems  clear,  therefore,  that  the  right  of  the  widow,  under  the  statute,  to  a 
third  of  the  lands  of  her  deceased  husband,  is  not  as  dowress,  but  it  rests  in 
lier,  at  his  death,  as  an  heir,  by  descent.  The  estate  thus  given  is  much  larger 
than  that  of  dower.  It  is  a  fee  simple,  and  not  merely  an  estate  for  life.  It 
differs  in  many  other  respects  from  dower;  it  entitles  the  wife,  without  as- 
signment, to  immediate  possession,  as  a  tenant  in  common  with  the  other  heirs, 
and  she  may  convey  it  at  pleasure.  On  the  other  hand,  it  has  some  of  the  in- 
cidents of  dower.  The  widow  is  made  a  favored  heir,  and  the  interest  which 
descends  to  her  is  exempt  from  liability  for  the  payment  of  the  debts  of  the 
estate.  And  so,  by  section  twenty-seven,  she  is  not  only  entitled  to  a  thirpl  of 
all  the  lands  of  which  her  husband  may  die  seized  in  fee  simple,  and  of  all  in 
•which  he  has  an  equitable  interest  at  the  time  of  his  death ;  but  also  of  all  of 
which  he  may  have  been  seized  in  fee  sin)ple  at  any  time  during  the  coverture, 
in  the  conveyance  of  which  she  did  not  join  in  due  form  of  law,"  etc. 

How  about  such  interest  being  subieet  to  the  inheritance  tax?  See  In  ro 
Estate  of  Strahan,  93  Neb.  828,  142  N.  W.  678  (1913). 


628  DERIVATIVE  TITLES  (Part  2 

SECTION  4.— ESTATES  FOR  YEARS 


LITTLETON'S  TENURES. 

Tenant  for  term  of  years  is  where  a  man  letteth  (lou  home  lessa) 
lands  or  tenements  to  another  for  term  of  certain  years,  after  the 
number  of  years  that  is  accorded  between  the  lesser  and  the  lessee.  And 
when  the  lessee  entreth  by  force  of  the  lease,  then  is  he  tenant  for  term 
of  years. 

Section  58. 


COKE  UPON  LITTLETON. 

Words  to  make  a  lease  be,  demise,  grant,  to  farm  let,  betake;  and 
whatsoever  word  amounteth  to  a  grant,  may  serve  to  make  a  lease. 
In  the  king's  case  this  word  Committo  doth  amount  sometime  to  a 
grant,  as  when  he  saith  Commissimus  W.  de  B.  officium  seneschalsise, 
&c.  quamdiu  nobic  placuerit,  and  by  that  word  also  he  may  make  a 
lease :  and  therefore  a  fortiori  a  common  person  by  that  word  may  do 
the  same. 

.  "Of  certain  years."  For  regularly  in  every  lease  for  years  the  term 
must  have  a  certain  beginning  and  a  certain  end;  and  herewith 
agreeth  Bracton,  terminus  annorum  certus  debet  esse  et  determina- 
tus.  And  Littleton,  is  here  to  be  understood,  first,  that  the  years 
must  be  certain  when  the  lease  is  to  take  effect  in  interest  or  posses- 
sion. For  before  it  takes  effect  in  possession  or  interest,  it  may 
depend  upon  an  incertainty,  viz.  upon  a  possible  contingent  before  it 
begin  in  possession  or  interest,  or  upon  a  limitation  or  condition  subse- 
quent. Secondly,  albeit  there  appear  no  certainty  of  years  in  the  lease, 
yet  if  by  reference  to  a  certainty  it  may  be  made  certain  it  sufficeth. 
Quia  id  certum  est  quod  certum  reddi  potest.  For  example  of  the  first. 
If  A,  seised  of  lands  in  fee  grant  to  B.  that  when  B,  pays  to  A.  20 
shillings,  that  from  thenceforth  he  shall  have  and  occupy  the  land 
for  21  years,  and  after  B.  pays  the  20  shillings,  this  is  a  good  lease 
for  21  years  from  thenceforth.  For  the  second,  if  A.  leaseth  his  land 
to  B.  for  so  many  years  as  B.  hath  in  the  manor  of  Dale,  and  B.  hath 
then  a  term  in  the  manor  of  Dale  for  10  years,  this  is  a  good  lease 
by  A.  to  B.  of  the  land  of  A.  for  10  years.  If  the  parson  of  D.  make 
a  lease  of  his  glebe  for  so  many  years  as  he  shall  be  parson  there, 
this  cannot  be  made  certain  by  any  means,  for  nothing  is  more  uncer- 
tain than  the  time  of  death.  Terminus  vitse  est  incertus,  et  licet  nihil 
certius  sit  morte,  nihil  tamen  incertius  est  hora  mortis.  But  if  he  make 
a  lease  for  three  years,  and  so  from  three  years  to  three  years,  so 
long  as  he  shall  be  parson,  this  is  a  good  lease  for  six  years,  if  he 


Ch.  5)  ESTATES  CREATED  629 

continue  parson  so  long,  first  for  three  years,  and  after  that  for 
three  years;    and  for  the  residue  uncertain. 

If  a  man  maketh  a  lease  to  I.  S.  for  so  many  years  as  I.  N.  shall 
name,  this  at  the  beginning  is  uncertain;  but  when  I.  N.  hath  named 
the  years,  then  it  is  a  good  lease  for  so  many  years. 

A  man  maketh  a  lease  for  21  years  if  I.  S.  live  so  long;  this  is  a 
good  lease  for  years,  and  yet  is  certain  in  incertainty,  for  the  life 
of  I.  S.  is  incertain.  See  many  excellent  cases  concerning  this  matter 
put  in  the  said  case  of  the  Bishop  of  Bath  and  Wells.  By  the  ancient 
law  of  England  for  many  respects  a  man  could  not  have  made  a  lease 
above  40  years  at  the  most  for  then  it  was  said  that  by  long  leases 
many  were  prejudiced,  and  many  times  men  disherited,  but  that  an- 
cient law  is  antiquated. 

"And  when  the  lessee  entreth  by  force  of  the  lease,  then  is  he  ten- 
ant for  term  of  years."  And  true  it  is,  that  to  many  purposes  he  is  not 
tenant  for  years  until  he  enter ;  as  a  release  made  to  him  is  not  good 
to  him  to  increase  his  estate,  before  •  entry ;  but  he  may  release  the 
rent  reserved  before  entry,  in  respect  of  the  privity.  Neither  can 
the  lessor  grant  away  the  reversion  by  the  name  of  the  reversion, 
before  entry.  But  the  lessee  before  entry  hath  an  interest,  interesse 
termini,  grantable  to  another.  And  albeit  the  lessor  die  before  the  les- 
see enters,  yet  the  lessee  may  enter  into  the  lands,  as  our  author  him- 
self holdeth  in  this  Chapter.  And  so  if  the  lessee  dieth  before  he 
entered,  yet  his  executors  or  administrators  may  enter,  because  he  pres- 
ently by  the  lease  hath  an  interest  in  him;  and  if  it  be  made  to  two, 
and  one  die  before  entry,  his  interest  shall  survive. 

Co.  Litt.  45b,  46a,  b. 


LITTLETON'S  TENURES. 

And  it  is  to  be  understood,  that  in  a  lease  for  years,  by  deed  or 
without  deed,  there  needs  no  livery  of  seisin  to  be  made  to  the  lessee, 
but  he  may  enter  when  he  will  by  force  of  the  same  lease. 

Section  59. 


HARE  et  al.  v.  CELEY. 
(Court  of  Common  Pleas,  15S8.     Cro.  Eliz.  143.) 

Trespass  for  breaking  their  close  called  Church-field,  and  metes 
and  bounds  it.  The  jury  find  a  special  verdict,  that  the  place  where 
was  sixteen  acres  lying  in  a  field  called  Church-field,  and  meted  it 
by  other  metes  and  bounds  that  were  mentioned  in  the  new  assign- 
ment, of  which  Hare  was  seised  in  fee,  and  eas  exposuit  to  the  other 
three  to  sow  at  halves,  scil.  that  he  should  find  one  half  of  the  seed, 
and  the  other  three  the  other  half,  and  should  manure  the  land;    and 


630  DERIVATIVE  TITLES  (Part  2 

that  Hare  should  have  one  moiety  of  the  grain  there  growing  when 
it  was  reaped,  and  the  others  the  other  moiety;  and  after  the  land 
was  sown,  A.  entered  by  the  command  of  the  defendant,  and  spoiled 
a  great  part  of  the  corn.  Upon  which  entry  and  spoiling,  the  action 
was  brought. — First  matter,  If  Church-field  being  found  to  be  a  great 
field,  in  which  divers  men  had  interest,  if  the  sixteen  acres  in  it  may 
be  called  Church-field?  And  as  to  this  the  Court  spake  little. — Sec- 
ond matter.  If  this  exposing  the  land  to  half  be  not  a  lease  of  the 
land,  so  as  the  action  was  to  be  brought  in  the  name  of  Hare  and  the 
three? — Third,  admitting  it  was  a  lease,  if  Hare  be  not  tenant  in  com- 
mon with  them  of  the  corn ;  for  the  moiety  of  that  which  was  sown, 
was  his? 

The  Couet  held  it  no  lease  of  the  land,  but  otherwise  if  it  be  for 
two  or  three  crops :  and  therefore,  as  to  the  breaking  of  the  close. 
Hare  only  was  to  bring  the  action ;  and  as  to  the  spoiling  the  corn, 
they  ought  to  join  being  tenants  in  common.  But  in  that  they  joined 
in  the  action  for  breaking  the  close,  whereas  he  ought  to  have  brought 
it  alone,  it  was  adjudged  the  writ  should  abate. 


CASWELL  V.  DISTRICH. 

(Supreme  Court  of  New  York,  1S36.     15  Wend,  379.) 

Error  from  the  Monroe  common  pleas.  The  plaintiff  as  executrix  of 
D.  Caswell,  brought  an  action  of  assumpsit  against  Districh  for  the  rent 
of  certain  premises.  The  defendant  pleaded  the  general  issue.  On 
the  trial,  the  plaintiff  produced  a  written  agreement  between  her  tes- 
tator and  the  defendant  to  the  effect;  that  the  testator  had  agreed 
to  let  the  defendant  have  his  farm  for  one  year,  and  that  Districh 
had  agreed  to  sow  oats  and  give  the  testator  one  third  in  the  half  bush- 
el; corn,  one  third  in  the  basket;  to  sow  three  lots  (particularly  de- 
scribed) into  wheat,  and  give  the  testator  one  third  in  the  half  bushel 
— the  meadow,  three  cocks  out  of  five,  and  the  rest  half  delivered 
in  the  barn.  The  plaintiff  proved  the  quantities  of  grain  raised  by  the 
defendant,  and  rested.  The  defendant  insisted  that  the  instrument 
produced  was  an  agreement  to  work  the  land  on  shares,  and  not  a 
lease  securing  rent ;  that  the  parties  therefore  were  tenants  in  common 
in  the  crops,  and  an  action  for  the  rent  of  the  premises  would  not  lie. 
Whereupon  he  moved  for  a  nonsuit,  which  was  granted  by  the  court. 
The  plaintiff  sued  out  a  writ  of  error. 

Nelson,  J.  The  agreement  between  the  parties  was  a  letting  of 
the  premises  upon  shares,  and,  technically  speaking,  was  not  a  lease. 
Bradish  v.  Schenck,  8  Johns.  151;  Foote  v.  Colvin,  3  Johns.  216,  3 
Am.  Dec.  478;  Whipple  v.  Foot,  2  Johns.  421,  3  Am.  Dec.  442;  De 
Mott  V.  Hagerman,  8  Cow.  220,  18  Am.  Dec.  443.  There  is  nothing 
which  indicates  that  the  stipulation  for  a  portion  of  the  crops  was 


Ch.  5)  ESTATES  CREATED  631 

by  way  of  rent;  but  the  contrary.  The  shares  were  of  the  specific 
crops  raised  upon  the  farm.  It  is  very  material  to  the  landlord,  and 
no  injury  to  the  tenant,  that  this  view  of  the  contract  should  be  main- 
tained, unless  otherwise  clearly  expressed,  for  then  the  landlord  has 
an  interest  to  the  extent  of  his  share  in  the  crops.  If  it  is  deemed 
rent,  the  whole  interest  belongs  to  the  tenant  until  a  division.  Where 
a  farm  is  let  for  a  year  upon  shares,  the  landlord  looks  to  his  interest 
in  the  crops  as  his  security,  and  thereby  is  enabled  to  accommodate 
tenants,  who  otherwise  would  not  be  trusted  for  the  rent. 

This  case  is  clearly  distinguishable  frbm  that  of  Stewart  v.  Dougher- 
ty, 9  Johns.  108.  There  the  court,  from  the  correspondence  between  the 
phraseology  of  the  instrument  and  the  terms  usual  in  leases  in  the 
reservation  of  rent,  came  to  the  conclusion  that  the, proportion  of  the 
crops  specified  in  the  agreement  was  intended  as  payment  of  rent  in 
kind,  and  that  therefore  the  whole  interest  belonged  to  the  tenant. 
If  my  conclusion  be  correct,  then  the  parties  were  tenants  in  com- 
mon in  the  crops,  and  as  the  plaintiff  stood  in  the  place  of  her  testator, 
she  was  not  entitled  to  sustain  her  action,  and  the  common  pleas  did 
right  to  grant  a  nonsuit. 

Judgment  affirmed.^^ 


STEEL  V.  FRICK. 

(Supreme  Court  of  Pennsylvania,  1867.    56  Pa.  172.) 

Error  to  the  Court  of  Common  Pleas  of  Westmoreland  county ; 
No.  90,  to  October  term,  1866. 

This  was  an  action  of  covenant,  commenced  April  6th,  1863,  by  Da- 
vid Z.  Frick  against  James  Steel,  and  was  founded  on  an  article  of 
agreement  dated  January  8th,  1862,  by  which  "Steel  agrees  to  let 
the  said  Frick  farm  his  part  of  the  Warden  farm,  now  in  the  occu- 
pancy of  James  D.  Porter,  for  the  term  of  one  year,  commencing  on 
the  1st  day  of  April  next — the  said  Frick  to  put  one  field  in  corn,  and 
work  it  sufficiently  well,  and  to  put  the  cornstalk  field  out  in  oats  in 
the  spring  in  good  time  and  order,  and  to  sow  so  much  of  the  land 
in  wheat  and  rye  in  the  fall  as  the  said  Steel  may  wish,  or  as  is  fit 
to  be  sowed,  and  to  haul  out  all  the  manure  and  put  it  on  the  ground 
before  sowing,  and  to  keep  up  the  fences  in  good  repair,  and  to  sow  so 
much  of  the  land  with  timothy  and  cloverseed  as  it  not  intended  to  be 

32  See  Putnam  v.  Wise,  1  Hill  (N.  Y.)  234,  37  Am.  Dec.  309  (1841). 

In  Taylor  v.  Donahoe,  125  Wis.  513,  103  N.  W.  1009  (1905),  the  arrangement 
entered  into  was  held  to  have  created  a  relatiou.'ship  of  master  and  servant  and 
that,  therefore,  the  ownership  of  the  crops  was  wliolly  in  the  landowner,  the 
cropper  acquiring  an  interest  therein  only  after  division  by  the  landowner.  So, 
also,  in  Ivelly  v.  Rnmnierheld,  117  Wis.  620,  94  N.  W.  619,  98  Am.  St.  Kep.  951 
(1903),  where  the  lando\\aier  sued  the  cropper  in  replevin  to  recover  the  half 
of  the  crop  by  him  harvested  and  appropriated ;  and  in  Farrow  v.  Wooley,  138 
Ala.  207.  36  South.  384  (1902). 


632  DERIVATIVE  TITLES  (Part  2 

ploughed  immediately  again,  and  to  deliver  the  said  Steel  the  one-half 
of  all  the  oats,  corn,  wheat  and  rye  at  market,  when  wanted  or  ready 
for  delivery.  All  to  be  done  in  a  sufficient  manner  as  farming  should 
be  done,  and  to  pay  all  the  taxes  assessed  or  to  be  assessed  for  the  year 
1862 — the  said  Frick  is  to  have  all  the  hay  he  makes,  and  all  the  pasture 
during  said  year  on  said  land." 

The  "Warden  farm"  contained  in  the  whole  about  159  acres,  and 
belonged  to  Steel  and  one  David  Williams.  In  an  action  of  partition 
by  Williams  against  Steel,  to  February  Term,  1862,  judgment  quod 
partitio  fiat  was  rendered  May  12th,  1862,  and  a  writ  de  part.  fac.  issued 
to  August  Term  1862. 

The  evidence  was,  that  Frick  went  to  the  house  on  the  premises  on 
the  1st  of  April,  1862,  with  all  his  goods.  Porter  had  the  house  locked 
and  would  not  let  Frick  in ;  he  had  to  haul  his  goods  away  and  put 
them  into  a  barn  about  two  miles  off,  and  his  family  into  an  almost 
untenantable  house  at  another  place.  There  was  evidence  that  Frick 
was  not  prevented  from  farming  the  land,  but  made  no  attempt  to 
do  so;  also,  that  upon  Frick's  informing  Steel  that  he  could  not  get 
possession.  Steel  said  he  would  give  him  a  house  and  land  off  his  own 
farm,  more  than  he  was  to  get  there ;  that  Steel  thought  the  offer  was 
a  good  one,  but  that  he  did  not  wish  to  leave  the  neighborhood. 

The  court  (Buffington,  P.  J.)  charged : 

"Steel  and  Williams  were  the  owners  of  this  land  as  tenants  in 
common.  Steel  leased  his  part  to  the  plaintiff,  Frick,  from  1st  April, 
1862  to  1st  April,  1863.  This  is  not  a  contract  to  lease  to  him  the 
whole  of  the  land,  but  only  his  part.  The  name  of  Porter  is  intro- 
duced, not  to  define  the  amount  of  interest  leased,  but  the  description 
of  the  tract,  his  interest  in  which  was  leased.  Steel  had  no  right  to 
the  entire  possession,  but  Williams  had  as  good  a  right  to  his  part  of 
the  tract.  [Steel,  however,  did  agree  to  lease  to  him  his  part  of  the 
land.  That  was  a  covenant  to  enable  him  to  get  and  hold  the  pos- 
session, and  enjoy  the  undivided  half  or  all  the  interest  Steel  had, 
including  not  only  the  farm  land,  but  the  barn,  house  and  other  build- 
ings necessary  to  the  enjoyment  of  the  farm.]  If  he  made  a  contract 
which  he  could  not  comply  with,  it  was  his  fault,  or  his  misfortune; 
and  if  the  contract  was  a  fair  one,  Frick  had  a  right  to  the  posses- 
sion, and  was  prevented  from  enjoying  the  premises  according  to  the 
spirit  of  the  agreement,  and  he  could  not  enjoy  it,  either  by  the  act  of 
Steel,  or  his  want  of  right  or  power  to  give  possession,  then  the  ten- 
ant would  be  entitled  to  recover  whatever  damages  he  sustained. 

"[If  the  jury  believe  Frick  was  thus  deprived  of  the  possession, 
either  by  the  act  or  want  of  power  in  Steel  to  give  possession,  Frick 
is  entitled  to  recover.]  It  is  no  excuse  that  he  could  not  give  a  pos- 
session." 

There  was  a  verdict  for  the  defendant  for  $315.91  damages. 

The  defendant  took  a  writ  of  error,  and  assigned  for  error  the  parts 
of  the  charge  included  in  brackets. 


Ch.  5)  ESTATES   CREATED  633 

Thompson,  J.  If  the  agreement  between  the  plaintiff  and  defend- 
ant in  this  case,  is  to  be  regarded  as  a  lease  of  the  premises,  it  would 
pass  the  possession  of  the  buildings  on  it  to  the  lessee.  It  would 
necessarily  be  a  covenant  for  quiet  enjoyment.  The  instrument  is 
very  inartificial,  but  we  think  it  contains  all  the  elements  of  a  lease. 

It  sets  out  by  a  stipulation,  that  "Steel  agrees  to  let  Frick  farm  his 
part  of  the  Warden  farm,  now  in  the  possession  of  James  D.  Porter." 
This  is  a  letting  to  farm  by  equivalent  "words  to  these,  "To  farm 
let,"  which  are  operative  terms  in  leases.  The  premises  mentioned 
were  well  understood,  at  least  no  dispute  exists  on  the  ground  of 
description.  After  this  preliminary  stipulation,  then  follows  "for  the 
term  of  one  year."  It  may  as  well  be  said  here,  that  this  and  what 
follows  is  nothing  like  a  contract  for  cropping.  After  stipulating 
about  the  mode  in  which  the  farming  was  to  be  done,  and  that  the 
lessee  should  haul  out  all  the  manure  to  the  fields,  and  keep  the  fences 
in  good  repair,  then  follows  the  reservation  of  rent,  which  was  to  be 
"the  one-half  of  all  the  oats,  corn,  wheat  and  rye,  to  be  delivered  to 
Steel  at  market  when  wanted,  or  ready  for  delivery,  and  the  payment 
of  all  the  taxes  for  the  year  1862,  Frick  to  have  all  the  hay  and  the 
pasture  of  the  land  during  the  year." 

A  cropper  is  one  hired  to  work  land  and  to  be  compensated  by  a 
share  of  the  produce.  Such  a  contract  gives  him  no  legal  possession 
of  the  premises,  further  than  as  a  hireHng.  The  legal  possession  re- 
mains in  the  hirer  or  landlord,  and  hence  the  remedy  by  distress  is 
not  applicable  to  him:  Fry  v.  Jones,  2  Rawle,  11;  Adams  v.  McKes- 
son, 53  Pa.  81,  91  Am.  Dec.  183.  That  the  above  contract  is  not  a 
hiring  to  work  land  merely,  is  evident.  The  lessee  was  to  farm  the 
lessor's  share  or  portion  of  the  Warden  farm  for  the  term  of  one 
3'^ear — to  do  it  in  a  sufficient  manner  as  farming  should  be  done,  and 
to  pay  all  taxes.  This  left  the  mode  of  farming  to  the  lessee,  as  it 
is  not  stipulated  to  be  done  in  a  particular  way,  and  necessarily  gave 
him  the  possession  and  control  to  do  the  farming  in  his  own  way,  un- 
like the  relation  of  a  mere  hireling — still  more  unlike  cropping,  as  the 
stipulation  that  the  lessee  was  to  pay  the  taxes.  One  hired  to  crop 
would  hardly  be  expected  to  pay  taxes.  But  it  is  further  apparent  in 
this,  that  Frick  was  to  have  the  possession  of  the  premises  for  the 
specified  term,  on  the  stipulation  that  he  was  bound  to  haul  out  the 
manure,  and  keep  the  fences  in  repair.  These  stipulations  clearly  look 
to  a  possession  of  the  premises  by  the  lessee;  so,  too,  is  the  stipula- 
tion for  all  the  pasturage  during  the  year.  If  then  the  contract  means, 
as  we  think  it  does,  that  the  possession  was  to  be  in  Frick,  this  evinces 
the  intention  to  create  a  tenancy. 

That  the  rent  was  reserved,  payable  in  kind  by  a  share  of  the  grain, 
does  not  militate  against  the  idea  of  a  lease.  In  Fry  v.  Jones,  on  the 
demise  of  a  grist-mill,  the  lessee  to  render  one-third  of  the  toll  as  rent, 
it  was  held  by  this  court  that  the  lessor  might  distrain  for  rent.  The 
principle  to  be  applied  in  that  case  was  illustrated  by  the  learned  judge, 


634  DERIVATIVE  TITLES  (Part  2 

by  the  case  of  farm-letting.  "We  have  almost  always,"  says  Rogers, 
J.,  "adopted  the  mode  of  renting  for  a  share  of  the  produce  of  the 
farm,  which  is  preferred  by  tenant  and  landlord;"  and  he  follows  this 
remark  by  concluding  that  a  distress  was  the  remedy  in  such  a  letting. 
An  implication  of  a  doubt  in  Warren  v.  Forney,  13  Serg.  &  R.  52, 
whether  the  right  of  distress  is  incident  to  a  lease,  may  possibly  arise 
from  the  remark  of  Tilghman,  C.  J.,  in  refusing  to  express  any  opinion 
on  the  point,  although  he  said  he  did  not  consider  it  legitimately  be- 
longing to  it;  but  Fry  v.  Jones  was  decided  five  years  subsequently, 
and  both  by  illustration  and  the  announcement  of  the  very  principle 
settled  the  doctrine  that  it  is.  So  in  Jones  v.  Gundrim,  3  Watts  &  S. 
.531,  rent  payable  in  hire  was  held  to  be  liable  to  distress,  and  the  case 
of  Jones  V.  Fry  was  relied  on  as  authority  for  it.  The  same  doctrine 
is  very  distinctly  announced  in  Rinehart  v.  Olwine,  5  Watts  &  S.  157. 
We  consider  the  doctrine  settled,  and  that  in  this  case  there  was  a  let- 
ting for  a  term,  with  a  reservation  of  rent  sufficiently  certain  to  per- 
mit of  a  distress.  This  being  so,  the  agreement  for  tenure  was  broken 
on  the  failure  of  the  plaintiff  to  get  possession,  being  kept  out  by  a 
person  in  possession  under  the  defendant.  The  declarations  of  the 
defendant,  and  his  offer  to  give  the  plaintiff'  a  house  and  land  in  an- 
other place,  was  some  evidence  of  the  understanding  as  to  the  pos- 
session. 

Upon  the  whole,  we  see  no  error  on  the  part  of  the  court  in  constru- 
ing the  instrument  in  question  a  lease,  and  in  charging  as  it  did  on  the 
subject-matter  complained  of.    Judgment  affirmed.^* 


SECTION  5.— ESTATES  AT  WILL  AND  FROM  YEAR 
TO  YEAR 


LITTLETON'S  TENURES. 

Tenant  at  will  is,  where  lands  or  tenements  are  let  by  one  man  to 
another,  to  have  and  to  hold  to  him  at  the  will  of  the  lessor,  by  force 
of  which  lease  the  lessee  is  in  possession.  In  this  case  the  lessee  is 
called  tenant  at  will,  because  he  hath  no  certain  nor  sure  estate,  for 
the  lessor  may  put  him  out  at  what  time  it  pleaseth  him. 

Section  68. 

33  In  Warner  v.  Abbey,  112  Mass.  355  (1873),  the  arrangement  for  cropping 
was  held  to  amount  to  a  lease. 

A.  leased  premises  to  B.  for  three  years,  with  the  privilege  of  five,  upon 
shares,  B.  to  to  all  the  work,  find  all  the  seed,  and  to  deliver  to  A.  one-third 
the  crops.  The  farm  was  to  be  cropped  in  a  way  specified,  and  B.  was  to  have 
the  use  of  certain  farm  implements  of  A.,  and  was  to  take  good  care  of  same. 
Could  B.  assign  his  interest  to  X?  Randall  v.  Chubb,  46  Mich.  311,  9  N.  W. 
4119,  41  Am.  Rep.  1C5  (1881) ;  Meyer  v.  Livesley,  45  Or.  487,  78  Pac.  670,  106 
Am.  St.  Rep.  667  (1904). 


Ch.  5)  ESTATES  CREATED  635 


COKE  UPON  LITTLETON. 

"Tenant  at  will  is,  where  lands  or  tenements  are  let  by  one  man  to 
another,  to  have  and  to  hold  to  him  at  the  will  of  the  lessor,  &c."  It 
is  regularly  true,  that  every  lease  at  will  must  in  law  be  at  the  will  of 
both  parties,  and  therefore  when  the  lease  is  made,  to  have  and  to  hold 
at  the  will  of  the  lessor,  the  law  implieth  it  to  be  at  the  will  of  the  les- 
see also ;  for  it  cannot  be  only  at  the  will  of  the  lessor,  but  it  must  be 
at  the  will  of  the  lessee  also.  And  so  it  is  when  the  lease  is  made  to 
have  and  to  hold  at  the  will  of  the  lessee,  this  must  be  also  at  the  will 
of  the  lessor ;  and  so  are  all  the  books  that  seem  prima  facie  to  differ, 
clearly  reconciled. 

"The  lessor  may  put  him  out."  There  is  an  express  ouster,  and  im- 
plied ouster;  an  express,  as  when  the  lessor  commeth  upon  the  land, 
and  expressly  forewarneth  the  lessee  to  occupy  the  ground  no  longer; 
an  implied,  as  if  the  lessor  without  the  consent  of  the  lessee  enter  into 
the  land,  and  cut  down  a  tree,  this  is  a  determination  of  the  will,  for 
that  it  should  otherwise  be  a  wrong  in  him,  unless  the  trees  were  ex- 
cepted, and  then  it  is  no  determination  of  the  will,  for  then  the  act  is 
lawful  albeit  the  will  doth  continue.  If  a  man  leaseth  a  manor  at  will 
whereunto  a  common  is  appendant,  if  the  lessor  put  in  his  beasts  to 
use  the  common,  this  is  a  determination  of  the  will.  The  lessor  may 
by  actual  entry  into  the  ground  determine  his  will  in  the  absence  of 
the  lessee  but  by  words  spoken  from  the  ground  the  will  is  not  deter- 
mined until  the  lessee  hath  notice.  No  more  than  the  discharge  of  a 
factor,  attorney,  or  such  like,  in  tlieir  absence,  is  sufficient  in  law  un- 
til they  have  notice  tliereof. 

Co.  Litt.  55a,  b. 


LITTLETON'S  TENURES. 

Also,  if  a  man  make  a  deed  of  feoffment  to  another  of  certain  lands, 
and  deHvereth  to  him  the  deed,  but  not  livery  of  seisin ;  in  this  case 
he,  to  whom  the  deed  is  made,  may  enter  into  the  land,  and  hold  and 
occupy  it  at  the  will  of  him  which  made  the  deed,  because  it  is  proved 
by  the  words  of  the  deed,  that  it  is  his  will  that  the  other  should  have 
the  land ;  but  he  which  made  the  deed  may  put  him  out  when  it  plea»- 
eth  him. 

Section  70. 


636  DERIVATIVE  TITLES  (Part  2) 


COKE  UPON  LITTLETON. 

There  is  a  great  diversity  between  a  tenant  at  will  and  a  tenant  at 
sufferance ;  for  tenant  at  will  is  always  by  right,  and  tenant  at  suffer- 
ance entreth  by  a  lawful  lease,  and  holdeth  over  by  wrong.  A  tenant 
at  sufferance  is  he  that  at  the  first  came  in  by  lawful  demise,  and  after 
his  estate  ended  continueth  in  possession  and  wrongfully  holdeth  over. 
As  tenant  pur  terme  d'auter  vie  continueth  in  possession  after  the  de- 
cease of  Ce'  que  vie,  or  tenant  for  years  holdeth  over  his  term;  the 
lessor  cannot  have  an  action  of  trespass  before  entry, 

Co.  Litt.  57b. 


LEIGHTON  V.  THEED. 

(Court  of  King's  Bench,  1701.    2  Salk.  413.) 

If  H.  holds  land  at  will,  rendering  rent  quarterly,  the  lessor  may  de- 
termine his  will  when  he  pleases ;  but  if  he  determines  it  within  a 
quarter,  he  shall  lose  the  rent  which  should  have  been  paid  for  that 
quarter  in  which  he  determines  it.  So  the  lessee  may  determine  it 
when  he  pleases,  but  tlien  he  must  pay  the  quarter's  rent.  Per 
How,  C.  J. 


TURNER  v.  MEYAIOTT. 

(Exchequer  Chamber,  1823.    1  Bing.  158.) 

Trespass  for  breaking  and  entering  plaintiflf's  house.  At  the  trial 
before  the  Lord  Chief  Baron,  Guilford  Summer  assizes,  1822,  it  ap- 
peared that  the  plaintiff  had  been  tenant  of  the  house  to  the  defend- 
ant, from  week  to  week ;  that  he  had  received  a  regular  notice  to  quit, 
but  omitted  to  deliver  up  possession,  whereupon,  the  defendant,  at  a 
time  when  nobody  was  in  the  house  broke  open  the  door  with  a  crow- 
bar, and  other  forcible  applications,  and  resumed  possession.  Some 
little  furniture  was  still  in  the  house.  The  Chief  Baron  having  said 
that  the  law  would  not  allow  the  defendant  thus  forcibly  to  reinstate 
himself,  the  jury  found  a  verdict  for  the  plaintiff,  whereupon, 
Taddy,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  and 
Pell,  Serjt,  now  showed  cause  against  the  rule.  The  question  is, 
whether  when  a  tenant  refuses  to  deliver  possession  after  a  regular 
notice  to  quit,  the  landlord  may  make  a  forcible  re-entry:  but  it  can- 
not be  permitted  he  should  take  the  law  into  his  own  hands,  and  do- 
that  by  violence  which  is  usually  accomplished  by  an  action  of  eject- 
ment. It  is  contrary  to  the  first  principles  of  law,  that  he  should  be- 
come judge  in  his  own  cause,  and  substitute  his  own  strength  for  the 
ordinary  civil  process.     If  there  had  been  resistance,  and  death  had 


Ch.  5)  ESTATES   CREATED  Q^t 

ensued,  the  crime  of  murder  would  have  been  committed;  and  it 
makes  no  difference  that  nobody  was  in  the  house,  for  the  defendant 
could  not  ascertain  that  till  he  entered,  and  the  plaintiff"  might  have 
come  up  while  the  violence  was  in  progress.  Some  furniture  being 
in  the  house,  this  was  not  a  case  of  vacant  possession.  The  statute  of 
11  G.  II,  which  gives  the  landlord  double  value  where  the  tenant 
holds  over,  shows  what  is  the  appropriate  remedy  in  such  cases ;  but 
that  statute  would  be  useless,  if  the  landlord  might  thus  take  the  law 
into  his  own  hands.  It  might  be  urged,  that  if  the  landlord  had  pro- 
ceeded irregularly  he  would  be  liable  in  an  indictment  for  a  forcible 
entry,  but  his  subsequent  liability  would  not  justify  the  previous 
wrong.  In  Taunton  v.  Costar,  7  T.  R.  431,  the  entry  made  by  the 
landlord's  putting  his  cattle  on  the  ground  was  entirely  peaceable,  and 
to  that  there  could  be  no  objection;  so  that  Lord  Kenyon's  observa- 
tion, "that  if  he  dispossessed  the  tenant  with  a  strong  hand,  he  would 
be  liable  for  a  forcible  entry,  but  there  could  be  no  doubt  of  his  right 
to  enter  on  the  land  at  the  expiration  of  the  term,"  was  uncalled  for 
by  the  case  before  him,  and  leads  to  the  absurdity,  that,  in  certain  cases, 
a  landlord  may  enter,  and  yet  he  shall  be  punished  for  the  entry. 
Pell  also  referred  to  Davies  v.  Connop,  1  Price,  53. 

Dallas,  C.  J.  The  high  respect  which  I  entertain  for  my  lord  chief 
baron,  has  alone  made  me  hesitate  a  single  moment,  and  even  now, 
perhaps,  as  the  cause  is  to  go  down  to  be  tried  again,  I  ought  not 
to  express  an  opinion.  The  question  is,  whether  a  landlord  has  a  right 
to  enter  in  the  manner  the  defendant  did  under  the  circumstances 
of  this  case,  in  which  the  tenant  held  over  after  his  right  to  posses- 
sion had  ceased,  and  the  landlord's  right  to  enter  had  accrued.  It 
must  be  admitted  he  had  a  right  to  take  possession  in  some  way ; 
the  case  of  Taunton  v.  Costar  is  in  point,  to  show  that  he  might 
enter  peaceably  and  that  no  ejectment  was  necessary.  If  he  had  used 
force,  that  is  an  offence  of  itself ;  but  an  offence  against  the  pub- 
lic for  which,  if  he  has  done  wrong,  he  may  be  indicted. 

Park,  J.  I  am  of  the  same  opinion.  The  declaration  states  that  the 
defendant  broke  and  entered  the  house  of  the  plaintiff,  but  the  fact 
was  not  so ;  the  plaintiff  had  gone  out,  and  the  house  was  not  his, 
but  his  landlord's,  who  had  a  right  to  break  his  own  door;  as  no 
person  was  within,  there  could  be  no  danger  to  any  man's  life.  Lord 
Kenyon  says,  in  Taunton  v.  Costar,  "it  is  clear  the  landlord  could 
have  justified  in  a  plea  of  liberum  tenementum.  There  can  be  no 
doubt  of  his  right  to  enter  upon  the  land  at  the  expiration  of  the 
term;"  and  that  decision,  in  my  judgment,  goes  the  whole  length  of 
the  present. 

BuRROUGH,  J.  I  was  once  concerned  at  the  cock-pit  in  a  case  similar 
to  the  present,  where  I  used  the  same  arguments  as  have  now  been 
urged  by  my  brother  Pell,  but  Lord  Kenyon  and  Lord  Alvanley  who- 
were  there,  entertained  no  doubt,  and  said  the  landlord  might  enter. 
The  rule  for  a  new  trial  in  this  case  must  be  made  absolute. 


638  DERIVATIVE  TITLES  (Part  2 

HILLARY  V.  GAY. 
(Court  of  Exchequer,  1S33.     6  Car.  &  P.  2S4.) 

Trespass  for  breaking  and  entering  a  room  of  the  plaintiff,  being 
parcel  of  a  dwelling-house.  There  were  also  counts  for  expulsion, 
and  for  taking  the  plaintiff's  goods.     Plea — General  issue. 

It  appeared  that  the  house  at  which  the  trespass  occurred  belonged 
to  the  defendant,  who  had  let  it  to  a  person  named  Jury,  who  had 
under-let  a  part  of  it  to  the  plaintiff.  It  further  appeared  that  Jury 
was  under  notice  to  quit  at  Midsummer,  1833,  but  that  the  plain- 
tiff did  not  quit  at  that  time,  the  defendant  having  distrained  his  goods 
in  the  month  of  August,  1833,  for  the  rent  due  up  to  Midsummer: 
it  was  also  proved  that  the  plaintiff  had  said  that  he  would  not  leave 
till  he  could  suit  himself,  which  would  be  within  a  fortnight;  how- 
ever, it  appeared  that  after  that  fortnight  the  plaintiff  did  not  leave; 
and  the  defendant  procured  a  number  of  Irishmen' to  go  to  the  house, 
and  after  getting  the  plaintiff  to  go  away,  by  sending  a  boy  to  tell 
him  that  his  master  wanted  him,  the  Irishmen  entered  the  plaintiff's 
room,  and  turned  his  wife  out  into  the  street,  and  put  the  plaintiff's 
furniture  out  at  the  window. 

Thesiger,  for  the  defendant. — I  submit  that  this  was  no  trespass  in 
the  defendant;  he  was  the  landlord,  and  the  tenancy  had  expired, 
and  he  had  therefore  a  right  to  resume  the  possession.  In  the  case 
of  Turner  v.  Meymott,  7  Moo.  574,  it  was  held  that  where  a  tenancy 
had  determined,  the  landlord  was  not  a  trespasser  if  he  broke  into  the 
house. 

Lord  Lyndhurst,  C.  B.  There  the  tenant  had  gone  away  and  had 
not  left  his  family  in  possession.  The  tenant  was  in  that  case  out 
of  possession,' and  no  one  was  in  possession.  Where  that  is  so,  the  land- 
lord may  enter  if  the  term  is  at  an  end. 

Thesiger.— In  the  case  of  Taylor  v.  Cole,  2  T.  R.  292,  it  was  held 
that  the  breaking  was  the  gist  of  the  action,  and  that  the  expulsion 
was  merely  aggravation. 

Lord  Lyndhurst,  C.  B.  How  do  you  say  the  tenancy  was  put  an 
end  to? 

Thesiger. — The  tenancy  terminated  on  ]\Tidsummer-day. 

Lord  Lyndhurst,  C.  B.    You  distrain  after  that. 

Ball. — There  was  also  a  disclaimer  by  the  plaintiff. 

A  witness  for  the  defendant  stated,  that  he  called  on  the  plaintiff 
in  July  or  August,  1833,  and  told  him  that  it  was  an  injury  to  his 
landlord  that  he  should  stay  in  the  house  contrary  to  his  agreement; 
and  that  the  defendant  replied,  that  he  would  not  go,  as  it  was  a  com- 
fortable thing  to  pay  no  rent,  and  that  he  would  not  leave  for  Mr.  Gay, 
or  Mr.  Jury  either. 

Lord  Lyndhurst,  C.  B.  (in  summing  up.)  Even  if  the  plaintiff 
had  promised  to  leave  at  a  particular  day,  the  conduct  of  the  defend- 


Ch.  5''  ESTATES  CREATED  639 

ant  is  unjustifiable.  There  is  no  proof  of  any  distinct  promise  of  the 
plaintiff  to  go  away  at  any  particular  time;  but  even  if  he  had  so 
promised,  I  am  of  opinion  that  the  conduct  of  the  defendant  cannot  be 
justified.  If  the  defendant  had  a  right  to  the  possession,  he  should 
have  obtained  that  possession  by  legal  means. 
Verdict  for  the  plaintiff — Damages  £50.^* 


POLLEN  AND  WIFE  v.  BREWER. 
(Court  of  Common  Pleas,  1859.    7  C.  B.  [N.  S.]  371.) 

The  first  count  of  the  declaration  charged  an  assault  on  the  female 
plaintiff,  the  second  (which  was  abandoned  at  the  trial)  the  like  with 
an  allegation  of  loss  of  service,  &c.,  the  third  an  assault  upon  the  male 
plaintiff,  the  fourth  breaking  and  entering  the  plaintiff's  dwelling-house 
and  forcibly  expelling  him  and  his  wife  and  family,  and  the  fifth  was 
trover. 

The  defendant  pleaded  not  guilty. 

34  In  New-ton  v.  Harlanrl,  1  M.  &  G.  644  flSJO),  the  plninfifP.  who  hfid  hoen 
forcibly  ejected  by  the  defendant  from  premises  to  the  possession  of  which 
the  defendant  was  then  entitled,  sued  for  assault  and  battery.  Tindal.  C.  J., 
said  :  "Tliis  case  involves  a  qnestion  of  great  importance  and  one  of  very  gen- 
eral application,  namely,  whether,  after  a  tenancy  has  been  determined  by  a 
notice  to  niiit,  the  landlord  may  enter  on  the  r)remises  wliilst  the  tenant  still 
remains  in  possession,  and  after  requesting  him  to  depart  and  give  up  the 
possession,  and  his  refusing  so  to  do.  may  turn  him  out  of  possession  by  force, 
u.sing  as  nmch  force  and  no  more  than  is  necessary  for  that  purpo.se.  *  *  * 
nie  point  above  stated  must  be  nece.ssarily  determined  before  this  case  is  ul- 
timately decided.  It  appears,  hpwever,  to  me  that  such  question  cannot,  upon 
the  present  finding  of  the  jury,  be  properly  brought  before  us.  *  *  *  For  if 
the  landlord,  in  making  his  entry  upon  the  tenant,  has  been  guilty  either  of  a 
breach  of  a  positive  statute,  or  of  an  ofCence  against  the  common  law.  it  ap- 
pears to  me  that  such  violation  of  the  law  in  making  the  enl rj'  causes  the  po.s- 
se.ssion  thereby  obtained  to  be  illegal,  and  that  the  allegation  in  the  plea  that 
one  of  the  defendants  was  lawfully  in  possession  at  the  time  the  assault  was 
committed  is  negatived." 

Hosanqnet.  .7..  said:  "Some  things  are  clear.  If  a  tenant  hold  over  the  land 
after  the  expiration  of  his  term,  he  cannot  treat  the  lessor,  who  enters  peace- 
ably, as  a  trespasser;  and  the  lessor,  in  such  ease,  may  justify  his  own  entry 
upon  the  land  by  virtue  of  his  title  to  the  possession.  *  *  *  On  the  other 
hand,  the  lessor,  who  is  out  of  posse.ssion.  cannot  maintain  an  action  of  trespass 
against  a  tenant  holding  over.  He  must  first  acquire  a  lawful  pos.session  be- 
fore he  can  maintain  such  action,  l^ut  if  the  lessor  enter  upon  the  land  to 
take  pos.session,  he  may  treat  as  trespassers  all  those  who  afterwards  come 
upon  it  (Hey  v.  Moorhouse.  6  New  Cases.  52,  8  Scott,  1.56  [1S."9|),  or  who,  hav- 
ing unlawfully  taken  possession,  wrongfully  continue  upon  the  land,  as  in  the 
case  of  Butcher  v.  Butcher,  7  B.  &  C.  402  (1S27),  whei'e  the  defendant  had 
come  into  possession  of  the  land  by  intrusion,  and  the  rightful  owner,  having 
entered,  was  held  entitled  to  maintain  an  action  of  trespass  against  him.  The 
lessor  may  even  break  and  enter  a  house,  provided  it  be  enii)ty,  which  has  been 
occupied  and  held' over  by  his  tenant,  though  the  tenant  may  have  left  some  of 
his  property  therein.  Turner  v.  Meymott,  1  Hing.  15S  (1S2:-;).  Hut  no  case  has 
yet  lieen  decided  in  which  the  lessor  has  been  held  to  be  justified  in  e.xpelling 
by  force  from  a  dwelling  house  a  person  who,  having  lawfully  come  into  pos- 
session of  it,  has  merely  continued  to  hold  possession  after  the  expiration  of  his 
title." 


'640  DERIVATIVE  TITLES  (Part  2 

The  cause  was  tried  before  Williams,  J.,  at  the  sittings  at  West- 
minster after  last  Term.  The  plaintiff  swore,  that,  in  May,  1858,  he 
entered  into  a  negotiation  with  the  defendant  for  an  assignment  of  a 
lease  of  certain  premises  which  the  defendant  held,  that  the  defend- 
ant agreed  to  let  him  into  possession,  and  gave  him  the  key,  and  that 
shortly  afterwards  the  defendant  went  to  the  premises  with  two  men, 
and  assaulted  the  plaintiff  and  his  wife,  and  turned  them  and  their 
children  and  furniture  into  the  street. 

The  defendant  denied  that  he  had  ever  agreed  to  let  the  premises  to 
the  plaintiff,  but  stated  that  he  gave  him  the  key  for  tlie  purpose  of 
enabling  his  agent  to  inspect  the  premises.  He  also  denied  the  alleged 
assaults,  and  proved  that,  the  plaintiff  having  refused  to  redeliver 
possession  of  the  premises  to  him  on  demand,  he  entered  and  expelled 
him. 

The  jury,  however,  found  that  there  was  a  tenancy  of  some  sort,  and 
that  the  alleged  assaults  were  committed;  and  they  found  for  the 
plaintiffs  on  the  first  count  20s.  damages,  on  the  third  count  40s.,  and 
on  the  fourth  count  £25.  The  learned  judge  reserved  leave  to  the  de- 
fendant to  move  to  reduce  tlie  damages  by  the  last-mentioned  sum,  if 
the  court  should  think  there  was  any  evidence  of  a  determination  of 
the  tenancy. 

ErlE,  C.  J.  I  am  of  opinion  that  this  rule  must  be  made  absolute 
to  reduce  the  verdict  by  i25.,  the  amount  of  damages  found  upon  the 
fourth  count.  It  is  clear  that  the  plaintiff  had  at  the  utmost  only  the 
interest  of  a  tenant  at  will.  I  incline  to  think  that  the  defendant  never 
intended  to  create  even  that  limited  interest:  but  the  jury  have  found 
it.  The  defendant,  having  a  right  to  determine  the  plaintiff's  posses- 
sion at  any  moment,  sent  to  demand  the  key,  telling  the  plaintiff  at 
the  same  time  (by  letter)  that  he  was  in  against  his  will.  I  am  of 
opinion  that  either  of  these  was  a  sufficient  intimation  to  the  plaintiff 
that  he  was  no  longer  tenant  at  will,  and  that  his  continuance  of  the 
possession  was  without  a  shadow  of  right,  and  therefore  that  the  de- 
fendant was  justified  in  treating  him  as  a  trespasser  and  removing 
him  from  the  premises.  There  was  abundant  evidence  that,  at  the 
time  of  the  expulsion,  the  plaintiff  was  on  the  premises  without  any 
right.     I  therefore  think  the  rule  must  be  made  absolute. 

Williams,  J.  I  also  think  there  was  sufficient  evidence  of  a  deter- 
mination of  the  will,  and  consequently  that  the  plaintiffs  are  not  enti- 
tled to  recover  damages  for  the  expulsion. 

Crowder,  J.  I  am  of  the  same  opinion.  I  do  not  see  what  more 
the  defendant  could  do  than  he  did  to  determine  what  the  jury  have 
found  to  be  a  tenancy  at  will.  It  is  said  that  there  was  no  proper  de- 
termination of  the  tenancy,  because  the  demand  of  ppssession  or  the 
key,  was  accompanied  by  an  assertion  that  there  never  was  any  ten- 
ancy at  all.  I  do  not,  however,  see  how  that  can  cut  down  the  evi- 
dence of  determination.  The  defendant  demands  the  key,  then  a  cor- 
respondence ensues,  and  then  he  makes  an  entry.    This  was  a  clear  in- 


Ch.  5)  ESTATES  CREATED  641 

timation  to  the  plaintiff  of  his  election  to  determine  any  right  he  might 
have. 

BylEvS,  J.  I  also  am  clearly  of  opinion  that  the  rule  to  reduce  the 
damages  should  be  made  absolute.  I  have  nothing  to  add  to  what  has 
fallen  from  the  rest  of  the  court. 

Rule  absolute. 


CURTIS  V.  GALVIN. 

(Supreme  Judicial  Court  of  Massachusetts,  1861.     1  Allen,  215.) 

Tort  for  entering  the  plaintiff's  dwelling-house,  and  removing  his 
furniture  and  ejecting  his  family  therefrom.  The  defendants  proved, 
in  justification,  that  the  defendant  Galvin,  being  the  owner  of  the 
premises,  conveyed  them  by  deed  to  the  other  defendant  Carney,  and 
that,  eight  days  before  the  acts  complained  of,  Carney  informed  the 
plaintiff  thereof,  and  gave  him  notice  to  quit.  At  the  trial  in  the  su- 
perior court  Rockwell,  J.,  directed  a  nonsuit,  arid  the  plaintiff  alleged 
exceptions.    The  facts  appear  more  fully  in  the  opinion. 

BiGiiLOW,  C.  J.  It  appears  by  the  testimony  of  the  plaintiff  that, 
in  October  1858,  prior  to  the  alleged  trespass,  the  premises  from  which 
he  was  ejected  belonged  to  Galvin.  Inasmuch  as  he  offered  no  evi- 
dence of  any  right  to  their  occupation  created  by  an  instrument  in 
writing,  he  could  have  no  greater  title  or  interest  tlierein  than  an  es- 
tate at  will.  Rev.  St.  c.  59,  §  29.  On  the  facts  stated  in  the  excep- 
tions, this  is  the  most  favorable  view  which  can  be  taken  of  his  right 
to  the  possession  and  enjoyment  of  the  premises,  prior  to  the  convey- 
ance to  the  defendant  Carney.  But,  on  a  familar  and  well  settled  rule 
of  law,  this  tenancy  at  will  was  determined,  and  the  plaintiff  became 
a  tenant  by  sufferance  only,  by  the  conveyance  from  Galvin  to  Carney, 
the  other  defendant,  on  the  9th  of  said  October.  Howard  v.  Merriam, 
5  Cush.  563,  574 ;   McFarland  v.  Chase,  7  Gray,  462. 

The  evidence  offered  by  the  plaintiff  to  impeach  this  conveyance, 
and  to  show  that  it  was  colorable,  and  was  in  fact  made  for  the  pur- 
pose of  enabling  the  said  Galvin  to  eject  the  plaintiff  from  the  prem- 
ises, was  rightly  rejected.  The  deed  was  a  valid  one  as  between  the 
parties.  It  passed  the  title  to  the  premises.  The  grantor  had  no  power 
to  compel  the  grantee  to  surrender  the  estate  conveyed  to  him.  It 
violated  the  legal  rights  of  no  person.  It  is  true  that  a  creditor  of 
the  grantor,  who  could  show  that  he  was  thereby  hindered,  delayed 
and  defrauded  of  the  collection  of  his  debt,  or  a  subsequent  purchaser 
without  notice,  who  could  prove  that  the  deed  was  made  with  intent 
to  defraud  him,  might  impeach  the  conveyance,  and  set  it  aside  on  tlie 
well  settled  principles  of  the  common  law  as  declared  in  Sts.  13  Eliz. 
c.  5,  sec.  2,  and  27  Eliz.  c.  4,  sec.  2.  But  in  such  case  the  deed  is 
valid  between  the  parties;  and,  witli  this  exception,  we  know  of  no 
Aiq.Pbop. — 41 


642  DERIVATIVE  TITLES  (Part  2 

rule  of  law  which  restrains  the  owner  in  fee  from  the  free  and  un- 
fettered alienation  of  his  estate.  It  is  only  an  exercise  of  a  legal  right, 
which  works  no  injury  to  any  one,  least  of  all  to  a  person  who  holds 
under  the  grantor.  He  took  his  estate  or  interest  in  the  premises  sub- 
ject to  all  the  legal  rights  of  the  owner  therein,  and  must  be  presumed 
to  have  known  them,  and  to  have  assented  thereto.  To  him,  there- 
fore, the  maxim  volenti  non  fit  injuria  is  applicable.  The  determina- 
tion of  an  estate  at  will,  by  an  alienation  by  the  owner  of  the  rever- 
sion, is  one  of  the  legal  incidents  of  such  an  estate,  to  which  the  right 
of  the  lessee  therein  is  subject,  and  by  which  it  may  be  as  effectually 
terminated  as  by  a  notice  to  quit  given  according  to  the  requisitions  of 
the  statute.  Indeed  it  is  difficult  to  see  upon  what  ground  a  deed  can  be 
held  void,  as  being  colorable  or  fraudulent,  which  is  made  in  the  ex- 
ercise of  a  legal  right,  and  which  has  no  effect  on  the  rights  of  a  third 
party,  who  seeks  to  set  it  aside,  other  than  that  which  was  necessarily 
incident  to  the  estate  which  he  held  in  the- premises.  The  dictum  of 
the  court  in  Howard  v.  Merriam,  ubi  supra,  cited  by  the  counsel  for 
the  plaintiff,  was  not  essential  to  the  decision  of  that  case,  and  cannot 
be  supported  on  principle  or  authority. 

It  follows  that,  after  the  conveyance  of  the  demised  premises,  the 
plaintiff  became  tenant  by  sufferance  only,  and  could  not  maintain 
this  action  of  tort  in  the  nature  of  trespass  quare  clausum  against  the 
defendant  Carney,  who  was  the  grantee  in  the  deed ;  nor  against  the 
other  defendant,  who  acted  under  his  authority  in  attempting  to  eject 
the  plaintiff  from  the  premises.  At  the  time  of  action  brought,  it  was 
not  the  plaintiff's  close.  A  tenant  by  sufferance  holds  possession 
wrongfully.  Co.  Litt.  57b,  271a.  The  defendants  had  a  full  right  of 
entry.     Meader  v.  Stone,  7  Mete.  147. 

Exceptions  overruled. 


SAY  V.  STODDARD. 
(Supreme  Court  of  Ohio,  1S75.     27  Ohio  St.  47S.) 

Error  to  the  Superior  Court  of  Montgomery  County. 

The  plaintiff  in  error  was  plaintiff  in  the  court  below,  where  his 
amended  petition  was  demurred  to,  on  the  ground  that  it  did  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  This  demurrer  was  sus- 
tained, and  plaintiff  not  desiring  farther  to  amend,  judgment  was  en- 
tered for  defendant.  The  action  of  the  court  in  sustaining  the  demur- 
'rer  is  here  assigned  for  error.  The  petition  was  substantially  as  fol- 
lows: 

That,  on  August  27th,  1869,  James  Celey  leased  a  dwelling-house  in 
the  city  of  Dayton,  in  the  county  of  Montgomery,  with  the  lot  whereon 
said  house  is  situate.     Said  written  lease  being  as  follows,  to  wit: 

"Henry  Stoddard,  Sr.,  has  rented  to  James  Celey  his  Fowler  House, 
on  lot  No.  4,  on  the  east  side  of  St.  Clair  street,  between  Water  and 


Ch.  5)  ESTATES  CREATED  648 

First  streets,  in  Dayton,  at  a  rent  of  thirteen  dollars  a  month,  for  so 
long  as  the  parties  shall  mutually  agree  to  continue  the  renting  under 
this  agreement.  Said  Celey  being  in  the  employment  and  service  of 
Stoddard  &  Co.,  in  their  mill ;  they  are  to  pay  the  rent  monthly  or  half 
monthly,  as  may  be  most  convenient,  out  of  Celey's  wages.  Either 
party  may  put  an  end  to  this  renting  by  giving  the  other  party  four 
days'  notice,  in  writing,  that  this  renting  is  to  cease  at  the  expiration 
of  four  days  from  the  service  of  such  notice  on  the  other  party.  Said 
Celey  agrees  to  use  arid  treat  the  premises  in  a  proper  tenant-like  man- 
ner while  he  occupies.  The  rent  to  commence  August  27.  1.869. 
"[Signed]  Henry  Stoddard,  Sr. 

"James  Celey. 
"[Stamp.] 

"Paid  up  to  Oct.  1,  1869." 

That  James  Celey,  on  the  27th  day  of  August,  1869,  with  Henry 
Stoddard,  Sr.'s,  consent,  took  lawful  and  peaceable  possession  of  the 
premises,  under  said  lease,  and  continued  in  possession  thereof  till  the 
'7th  day  of  December,  1869,  when  he  moved  out  of  said  premises. 

That  while  said  Celey  was  in  possession  of  said  premises,  and  before 
he  moved  out,  he  did,  on  the  1st  day  of  December,  1869,  rent  two 
rooms  of  said  house  to  the  plaintiff,  George  Say,  .for  six  dollars  p^r 
month — Say  paying  to  Celey,  on  the  day  of  renting,  four  dollars  rent 
on  the  month  of  December,  1869;  that  on  said  1st  day  of  December, 
1869,  Say,  with  his  wife,  moved  into  the  said  two  rooms  of  said  house, 
while  Celey,  with  his  family,  occupied  the  other  room,  with  small 
kitchen,  immediately  in  the  rear  of  and  adjoining  the  two  rooms  occu 
pied  by  Say.  Said  Celey  continuing  to  occupy  the  rooms  in  the  rear  of 
Say's,  till  the  7th  day  of  December,  1869,  when  he,  Celey,  moved  out 
of  the  premises;  Celey  owing,  on  back  rent,  seven  dollars  for  month  of 
November  1869;  George  Say  and  his  wife  continued  in  possession  of 
his  two  rooms  from  December  1st  till  December  15th,  1869,  when,  on 
December  15th,  1869,  E.  Fowler  Stoddard,  the  defendant,  the  son  of 
Henry  Stoddard,  Sr.,  with  screw-driver,  hatchet  and  ax,  went,  on  said 
15th  day  of  December,  1869,  to  the  front  door  of  the  room  fronting  on 
St.  Clair  street,  Say  and  his  wife  being  in  their  rooms  at  the  same  time ; 
that  E.  Fowler  Stoddard,  with  his  instruments  aforesaid,  and  without 
the  consent  of  Say  or  his  wife,  and  against  their  remonstrance,  pro- 
ceeded to  get  possession  of  said  rooms,  occupied  at  the  time  by  Say 
and  his  wife,  by  taking  hold  of  the  knob  of  the  front  door,  leading  into 
tlie  front  room,  which  was  fastened  by  a  lock.  The  door  being  opened 
by  defendant,  the  plaintiff,  Say,  warning  him  not  to  come  in.  That  the 
defendant,  on  said  15th  day  of  December,  1869,  and  while  Say  (who 
was  69  years  old  in  March,  1871)  and  his  wife  were  in  their  rooms,  did 
enter  their  rooms,  and  did  remove,  take  off,  and  carry  away  five  doors 
and  five  windows — being  all  the  doors  and  windows  belonging  to  the 
rooms  occupied  by  the  plaintiff,  George  Say,  and  his  wife ;  and  also  be- 
ing all  the  doors  and  windows  of  the  rooms  occupied  by  Celey 


644  DERIVATIVE  TITLES  (Part  2 

and  his  family,  till  he  moved,  December  7,  1869,  excepting  one 
door  in  rear  room  of  house.  And  in  removing  one  of  the  doors 
in  the  room,  immediately  in  the  rear  of  and  adjoining  the  front 
room,  in  order  to  get  at  the  door  to  take  it  off  the  hinges  the 
defendant  did  move  a  cupboard  of  plaintiff,  so  he  could  get  at  the  door 
with  his  screw-driver.  After  the  doors  and  windows  were  taken  away 
by  defendant,  the  plaintiff'  hung  up  at  the  door,  strips  of  carpet.  The 
day,  on  which  the  doors  and  windows  were  taken  down  and  carried 
away  by  defendant,  was  cold  and  chilly,  and  remained  cold  till  plaintiff 
left  said  premises,  which  was  on  the  20th  day  of  December,  1869. 
Plaintiff  being  compelled  to  leave  the  premises  by  reason  of  defendant's 
acts,  as  aforesaid.  Snow  had  fallen  while  plaintiff  was  in  possession 
of  rooms,  and  during  the  time  the  doors  and  windows  were  out. 

No  written  notice  to  leave  said  premises  was  ever  served  by  anyone 
— on  either  Say  or  Celey. 

Neither  did  Celey  ever  serve  a  written  notice  on  Stoddard,  Sr.,  or 
defendant,  that  he,  Celey,  would  leave  the  premises. 

Said  Henry  Stoddard,  Sr.,  died  on  November  1,  1869,  testate,  leaving 
the  said  defendant  one  of  his  executors  and  devisee  under  the  will  of 
said  decedent.  Said  plaintiff  says  that  by  reason  of  the  acts  of  the  de- 
fendant herein  set  forth,  said  plaintiff  has  sustained  damage  five  thou- 
sand dollars,  for  which  he  asks  judgment. 

Scott,  Chief  Judge.  The  contract  of  lease  between  Stoddard,  Sr., 
and  Celey,  set  out  in  the  petition  in  the  court  below,  created,  by  its 
express  terms,  a  tenancy  at  will. 

True,  the  rent  was  to  be  $13.00  a  month,  and  was  to  be  paid  by  Stod- 
dard &  Co.  out  of  Celey's  wages,  monthly,  or  half  monthly,  as  might  be 
most  convenient.  But  the  renting  was  to  continue  for  "so  long  as  the 
parties  shall  mutually  agree  to  continue  the  renting  under  this  agree- 
ment." And,  again :  "Either  party  may  put  an  end  to  said  renting  by 
giving  the  other  party  four  days'  notice,  in  writing,  that  this  renting 
is  to  cease  at  the  expiration  of  four  days  from  the  service  of  such  no- 
tice on  the  other  party."  It  is  clear,  from  this  language,  that  the  tenant 
was  to  hold  at  the  will  of  the  lessor,  though  while  the  tenancy  continued 
the  rent  was  to  be  paid  monthly  or  half  monthly. ^^  The  character  of 
the  tenancy  is  not  affected  by  the  fact  that  four  days'  notice  of  its  de- 
termination, is  provided  for  in  the  contract ;  for  in  a  general  tenancy  at 
will,  reasonable  notice  must  be  given  by  the  party  whose  will  determines 
it,  to  the  other  party;  and  the  contract  here  fixes  the  length  of  that 
notice.  It  is  said  by  Blackstone :  "An  estate  at  will  is  where  lands  and 
tenements  are  let  by  one  man  to  another,  to  have  and  to  hold  at  the  will 
of  the  lessor,  and  the  tenant  by  force  of  this  lease  obtains  possession." 
2  Bl.  Com.  145 ;  Litt.  §  68.  Such  tenant  has  no  certain  indefeasible  es- 
tate, nothing  that  can  be  assigned  by  him  to  any  other,  because  the 
lessor  may  determine  his  will,  and  put  him  out  whenever  he  pleases. 
2  Bl.  Com.  145 ;  Taylor's  Landl.  and  Ten.  48. 

8B  Richardson  v.  Langredge,  4  Taunt.  12S  (1811),  ace. 


Ch.  5)  ESTATES  CREATED  645 

Tenancy  at  will  may  be  determined  by  implication  of  law.  Such  im- 
plication will  arise  on  the  deatli  of  either  of  the  parties.  So,  if  a  tenant 
at  will  assigns  over  his  estate  to  another,  who  enters  on  the  land  he  is 
a  disseisor,  and  the  landlord  may  have  an  action  of  trespass  against 
him,    Greenl.  Cruise  on  R.  Pr.  244;  Taylor's  Landl.  and  Ten.  48. 

So,  also,  a  desertion  of  the  premises  by  the  lessee,  puts  an  end  to 
a  tenancy  at  will.  For  he  thereby  discontinues  his  lawful  possession 
and  terminates  his  relation  to  his  lessor,  which  is  only  of  a  personal 
character,  and  he  ceases  to  have  any  interest  in  the  premises  which  he 
can  transfer  or  control. 

The  plaintiff  shows,  by  his  petition,  that  Stoddard,  the  lessor,  died 
November  1,  1869,  leaving  the  defendant  his  devisee  of  the  premises. 
Celey,  the  lessee,  continued  in  possession  till  December  1st,  when  he 
undertook  to  sublet  a  part  of  the  premises  to  the  plaintiff.  It  is  not 
alleged  that  the  defendant  assented  to  tliis  continuance  of  possession, 
or  subletting.  On  the  7th  of  December,  the  lessee,  Celey,  removed 
wholly  from  the  premises ;  and,  eight  days  afterward,  the  grievances 
occurred  of  which  the  plaintiff  complains.  As  against  the  defendant, 
the  plaintiff  acquired  no  rights  by  his  contract  with  Celey,  for  the 
latter  had  none  which  he  could  transfer.  The  facts  stated  do  not 
show  that  the  relation  of  landlord  and  tenant  was  ever  created  between 
tlie  parties  to  this  suit.  There  was  neither  privity  of  estate,  nor  of  con- 
tract between  tliem.  And  the  acts  complained  of  were  but  the  lawful 
exercise  of  the  rights  incident  to  the  defendant's  ownership  of  the 
premises,  and  are  not  charged  to  have  been  attended  with  any  unneces- 
sary interference  either  with  the  plaintiff's  person  or  property. 

We  think  the  court  below  properly  sustained  the  demurrer  to  the 
plaintiff's  petition,  and  its  judgment  is  affirmed. 


READER  V.  PURDY. 
(Supreme  Court  of  Illinois,  1S66.    41  111.  279.) 

Appeal  from  K?ne;  Isaac  G.  Wilson,  J. 

Erastus  S.  Purdy,  in  the  fall  of  1858,  built  a  house  on  a  lot  in  Au- 
rora, which  he  obtained  of  Otis  on  a  parol  contract,  went  into  posses- 
sion of  the  same  with  his  family,  and  occupied  the  same  as  a  homestead 
from  that  time  until  the  spring  following  the  assault  and  battery  for 
which  this  suit  is  brought.  In  1861,  Reader,  whose  wife  was  sister 
to  Purdy's  wife,  obtained  from  Otis  the  legal  title  of  the  premises  on 
which  Purdy  and  wife  lived,  and  brought  an  action  of  ejectment  for 
the  possession  of  the  same.  On  the  first  trial  of  the  ejectment  suit, 
the  jury  rendered  a  verdict  in  favor  of  Purdy,  and  a  new 'trial  was 
granted  to  Reader ;  and  between  the  time  of  the  first  trial  and  that  of 
the  second  trial  of  the  ejectment  suit,  to-wit:  in  October,  1862,  Read- 
er, Baker  and  Barker,  in  the  absence  of  Purdy  from  home,  got  admis- 
sion into  the  house,  and  then  proceeded  to  put  Mrs.  Purdy  and  the 


G4G  DERIVATIVE  TITLES  (Part  2 

furniture  out  of  the  house  by  force.  Mrs.  Purdy,  who  is  described  as 
a  weak  hltle  woman,  wcighinj^  ninety-six  pounds,  fought  for  her  pos- 
session willi  great  energy.  She  locked  one  of  the  doors  and  gave  the 
key  to  her  daughter,  from  whom  it  was  taken,  then  went  at  the  assail- 
ants with  hot  water,  a  stick  of  wood  and  a  bayonet  belonging  to  her 
husband,  who  had  been  a  soldier  in  the  army,  and,  insomuch  that  one 
of  the  assailants  was  obliged  to  hold  her  by  the  wrists,  to  enable  the 
other  two  to  get  out  the  fiirniture.  Innally,  after  all  the  furniture  had 
been  got  out  of  the  house,  except  that  in  her  bed-room,  she  succeeded 
in  nailing  a  board  across  the  door  and  barring  the  assailants  out.  By 
this  time  the  city  marshal  and  others  arrived,  and  the  attempt  to  dis- 
possess her,  which  had  occupied  from  nine  to  twelve  o'clock  in  the 
morning,  was  abandoned.  The  second  trial  of  the  ejectment  suit  oc- 
curred in  May,  1863,  and  the  record  therein  was  introduced  in  evidence 
on  the  trials  of  these  causes,  as  showing  that  at  the  time  of  the  assault 
the  title  to  the  property  of  which  Purdy 's  family  were  in  the  occupancy 
was  in  the  defendant  Reader.  No  new  trial  was  ever  granted  or  ap- 
peal taken  in  the  ejectment  suit.     The  court  instructed  the  jury: 

1.  That  in  trespass  all  are  principals,  he  who  stands  by  advising, 
etc.,  as  well  as  he  who  does  the  act. 

2.  That  if  defendants  obtained  admission  to  the  premises  thereto- 
fore occupied  by  plaintiffs,  with  intent  to  remove  plaintiffs  by  force, 
then  defendants  were  trespassers  from  the  beginning. 

3.  The  fact  that  the  defendant  Reader  was  the  owner,  and  entitled 
to  the  possession  of  the  premises  occupied  by  the  plaintiff,  is  no  justifi- 
cation for  the  assault  and  battery  upon  the  plaintilT's  wife,  if  any  such 
is  proven,  and  no  justification  of  his  attempts  to  take  possession  of  the 
premises  occupied  by  the  plaintifT  by  force,  and  no  justification  for 
the  removal  of  plaintiff's  property  therefrom  by  force,  if  any  such 
force  is  proven;  j)rovided  that  the  plaintiff  and  his  family  were  in  the 
quiet  possession  of  the  said  premises  at  the  time  of  such  assault  and 
force;  neither  can  that  fact  be  regarded  by  the  jury  in  mitigation  of 
any  actual  damages  caused  the  plaintiff  by  such  assault  and  force. 

The  other  instructions  present  nothing  essentially  dilTerent.  The 
jury  found  a  verdict  for  the  plaintiffs  in  the  suit  of  Purdy  and  wife, 
for  $5a),  and  in  the  suit  of  Purdy  for  $450. 

Lawrence,  J.  These  two  cases,  although  separately  tried,  depend 
upon  the  same  facts  and  present  similar  questions,  and  it  will  be  more 
convenient  to  dispose  of  both  in  one  opinion. 

In  October,  1862,  Reader,  claiming  to  be  the  owner  of  a  house  oc- 
cupied by  Purdy  and  his  wife,  entered  it,  accompanied  by  the  other 
appellants,  for  the  purpose  of  taking  i:)Ossession.  Purdy  was  not  at 
home.  Mrs.  Purdy  refused  to  leave,  whereupon  Reader  commenced 
putting  the  furniture  out  of  doors.  She  resisted  this,  and  he  seized 
her  and  held  her  by  the  wrists,  while  Baker,  one  of  the  co-defendants, 
continued  to  remove  the  furniture.  This  was  somewhat  damaged,  and 
some  slight  injury  was  done  to  the  wrists  of  Mrs.  Purdy  by  tlie  force 


Ch.  5)  ESTATKS   CREATED  647 

applied  in  liolding^  lior.  The  appellants  finally  abandoned  their  at- 
tempt to  lake  possession  and  withdrew. 

Two  actions  of  trespass  have  been  brought,  one  by  Turdy  alone,  and 
one  by  Purdy  and  wife  jointly.  The  declaration  in  the  suit  hrouj^ht  by 
Purdy  contains  three  counts,  the  first  being  for  the  assault  upon  his 
wife,  the  second  for  the  injury  to  the  personal  property,  and  the  third 
for  breaking  his  close  and  carrying  o(T  his  furniture.  The  declaration 
in  the  suit  of  I'urdy  and  wife  contains  two  counts,  both  of  which  are 
for  the  assault  upon  the  wife.  There  were  pleas  of  not  guilty,  and  an 
agreement  that  all  defenses  might  be  made  under  them.  A  vercHct  for 
the  i)laintirf  of  $450  in  one  case,  and  $500  in  the  other  was  returned  by 
the  jury,  and  a  judgment  was  rentlered  uiK)n  it  from  which  the  de- 
fendants appealed. 

It  is  insisted  by  the  appellants  that  Reader,  being  the  owner  of  the 
premises,  had  a  right  to  enter,  and  to  use  such  force  as  might  be  neces- 
sary to  overcome  any  resistance,  and  that  he  cannot  be  made  liable 
as  a  trespasser,  although  it  is  admitted  he  might  have  been  compelled  to 
restore  to  Purdy,  through  an  action  of  forcible  entry  and  detainer, 
the  possession  thus  forcibly  taken.  The  court  below  instructed  other- 
wise, and  this  ruling  of  the  court  is  assigned  for  error. 

We  should  not  consider  the  question  one  of  much  difficulty,  were  it 
not  for  the  contradictory  decisions  in  regard  to  it,  and  we  must  admit 
that  the  current  of  authorities,  up  to  a  comparatively  recent  period,  is 
adverse  to  what  we  are  convinced  must  be  declared  to  be  the  law  of 
this  State.  P.ut  the  rule  cannot  be  said  to  have  been  firmly  or  authori- 
tatively settled  even  in  England,  for  Hrskine,  J.,  observes  in  Newton  v. 
Harland,  1  Man.  &  Gr.  644  (39  E,  C,  L,  581),  that  "it  was  remarkable 
a  question  so  likely  to  arise,  should  never  have  been  directly  brought 
before  any  court  in  banc  until  that  case."  This  was  in  the  year  1840, 
and  all  the  cases  prior  to  that  time,  in  which  it  was  held  that  the  owner 
in  fee  could  enter  with  a  strong  hand,  without  rendering  himself  liable 
to  an  action  of  trespass,  seem  to  have  been  merely  at  nisi  prius,  like 
the  oft-quoted  case  of  Taunton  v.  Costar,  7  T,  R.  431.  Still  this  was 
the  general  language  of  the  books.  But  the  point  had  never  received 
such  an  adjudication  as  to  pass  into  established  and  incontrovertible 
law,  and  a  contrary  rule  was  held  by  Lord  Ivyndhm-st  in  Hilary  v. 
Gay,  6  C.  &  P.  284  (25  E.  C,  L.  398).  But  in  Newton  v.  Harland, 
already  referred  to,  the  court  of  Common  Pleas  gave  the  question  ma- 
ture consideration,  and  finally  held,  after  two  arguments,  that  a  land- 
lord who  should  enter  and  expel  by  force  a  tenant  holding  over  after 
expiration  of  his  term,  would  render  himself  liable  to  an  action  for 
damages.  But  the  later  case  of  Meriton  v.  Combs,  67  E.  C.  L. '788, 
seems  to  recognize  the  ojiposite  rule,  and  we  must,  therefore,  regard  a 
question  which  one  would  expect  to  find  among  the  most  firmly  settled 
in  the  law  as  still  among  the  controverted  points  of  Westminster  Hall. 

In  our  own  country  there  is  the  same  conflict  of  authorities.  In 
New  York  it  has  been  uniformly  held,  that,  under  a  plea  of  liberum 


648  DERIVATIVE  TITLES  (Part  2 

tenementum,  the  landlord,  who  has  only  used  such  force  as  might  be 
necessary  to  expel  a  tenant  holding  over,  would  be  protected  against 
an  action  for  damages.  Hyatt  v.  Wood,  4  Johns.  (N.  Y.)  150,  4  Am. 
Dec.  258,  and  Ives  v.  Ives,  13  Johns.  (N.  Y.)  235.  In  Jackson  v.  Far- 
mer, 9  Wend.  (N.  Y.)  201,  the  court,  while  recognizing  the  rule  as  law, 
characterize  it  as  "harsh,  and  tending  to  the  public  disturbance  and  indi- 
vidual conflict."  Kent,  in  his  Commentaries,  states  the  principle  in 
the  same  manner,  but  in  the  later  editions  of  the  work,  reference  is 
made  by  the  learned  editor  in  a  note,  to  the  case  of  Newton  v.  Harland, 
above  quoted,  as  laying  down  "the  most  sound  and  salutary  doctrine." 

In  Tribble  v.  Frame,  7  J.  J.  Marsh,  (Ky.)  599,  23  Am.  Dec.  439,  the 
court  held,  that,  notwithstanding  the  Kentucky  statute  of  forcible  en- 
try and  detainer,  the  owner  of  the  fee,  having  a  right  of  entry,  may  use 
such  force  as  may  be  necessary  to  overcome  resistance,  and  protect 
himself  against  an  action  of  trespass,  under  a  plea  of  liberum  tenemen- 
tum. On  the  other  hand,  the  Supreme  Court  of  Massachusetts  has 
held,  that,  although  trespass  quare  clausum  may  not  lie,  yet,  in  an  ac- 
tion of  trespass  for  assault  and  battery,  the  landlord  must  respond  in 
damages,  if  he  has  used  force  to  dispossess  a  tenant  holding  over.  The 
court  say,  "he  may  make  use  of  force  to  defend  his  lawful  possession 
but,  being  dispossessed,  he  has  no  right  to  recover  possession  by  force, 
and  by  a  breach  of  the  peace."  Sampson  v.  Henry,  11  Pick.  (Mass.) 
379.  See  also  Ellis  v.  Page,  1  Pick.  (Mass.)  43 ;  Sampson  v.  Henry, 
13  Pick.  (Mass.)  36 ;  Meader  v.  Stone,  7  Mete.  (Mass.)  147,  and  Moore 
V.  Boyd,  24  Me.  242.  But,  by  far  the  most  able  and  exhaustive  discus- 
sion that  this  question  has  received,  was  in  the  case  of  Dustin  v.  Cow- 
dry,  23  Vt.  635,  in  which  Mr.  Justice  Redfield,  delivering  the  opinion  of 
the  court,  shows,  by  a  train  of  reasoning  which  compels  conviction,  that, 
in  cases  of  this  character,  the  action  of  trespass  will  lie.  .And  he  also 
says :  "Whether  the  action  should  be  trespass  quare  clausum,  or  as- 
sault and  battery,  is  immaterial,  as  under  this  declaration,  if  the  de- 
fendant had  pleaded  soil  and  freehold,  as  some  of  the  cases  hold,  the 
plaintiff  might  have  new  assigned  the  trespass  to  the  person  of  the 
plaintiff",  and  a  jury,  under  proper  instructions,  would  have  given  much 
the  same  damages,  and  upon  the  same  evidence,  in  whatever  form  the 
declaration  is  drawn."  The  case  of  Mussey  v.  Scott,  32  Vt.  82,  cited 
as  inconsistent  with  this  case  does  not  in  fact  conflict  with  it.  It  only 
holds  that  trespass  quare  clausum  will  not  lie  in  behalf  of  a  tenant  for 
an  entry  not  within  the  statute  of  forcible  entry  and  detainer. 

In  this  conflict  of  authorities  we  must  adopt  that  rule  which,  in  our 
judgment,  rests  upon  the  sounder  reason.  We  cannot  hesitate,  and 
were  it  not  for  the  adverse  decision  of  courts,  which  all  lawyers  regard 
with  profound  respect,  we  should  not  deem  the  question  obscured  by 
a  reasonable  doubt.  The  reasoning  upon  which  we  rest  our  conclusion 
Hes  in  the  briefest  compass,  and  is  hardly  more  than  a  simple  syllogism. 
The  statute  of  forcible  entry  and  detainer,  not  in  terms,  but  by  neces- 
sary construction,  forbids  a  forcible  entry,  even  by  the  owner,  upon 


Ch,  5)  ESTATES  CREATED*  649 

the  actual  possession  of  another.  Such  entry  Is,  therefore,  unlawful. 
If  unlawful,  it  is  a  trespass,  and  an  action  for  the  trespass  must  neces- 
sarily lie.  It  is  urged  that  the  only  remedy  is  that  given  by  the  statute, 
— an  action  for  the  recovery  of  the  possession.  But  the  law  could  not 
expel  him  who  has  entered  if  his  entry  was  a  lawful  entry,  and  if  not 
lawful  all  the  consequences  of  an  unlawful  act  must  attach  to  it.^  The 
law  is  not  so  far  beneath  the  dignity  of  a  scientific  and  harmonious 
system  that  its  tribunals  must  hold  in  one  form  of  action  a  particular 
act  to  be  so  illegal  that  immediate  restitution  must  be  made  at  the  costs 
of  the  transgressor,  and  in  another  form  of  action  that  the  same  act 
was  perfectly  legal,  and  only  the  exercise  of  an  acknowledged  right. 

It  is  urged  that  the  owner  of  real  estate  has  a  right  to  enter  upon  and 
enjoy  his  own  property.  Undoubtedly,  if  he  can  do  so  without  a  forci- 
ble disturbance  of  the  possession  of  another;  but  the  peace  and  good 
order  of  society  require  that  he  shall  not  be  permitted  to  enter  against 
the  will  of  the  occupant,  and  hence  the  common  law  right  to  use  all 
necessary  force  has  been  taken  away.  He  may  be  wrongfully  kept 
out  of  possession,  but  he  cannot  be  permitted  to  take  the  law  into  his 
own  hands  and  redress  his  own  wrongs.  The  remedy  must  be  sought 
through  those  peaceful  agencies  which  a  civilized  community  provides 
for  all  its  members.  A  contrary  rule  befits  only  that  condition  of  so- 
ciety in  which  the  principle  is  recognized  that 

He  may  take  who  has  the  power, 
And  he  may  keep  who  can. 

If  the  right  to  use  force  be  once  admitted,  it  must  necessarily  follow 
as  a  logical  sequence,  that  so  much  may  be  used  as  shall  be  necessary 
to  overcome  resistance,  even  to  the  taking  of  human  life.  The  wisdom 
of  confining  men  to  peaceful  remedies  for  the  recovery  of  a  lost  pos- 
session is  well  expressed  by  Blackstone,  book  4,  p.  148 :  "An  eighth 
offense,"  he  says,  "against  the  public  peace,  is  that  of  a  forcible  entry 
and  detainer,  which  is  committed  by  violently  taking  or  keeping  posses- 
sion of  lands  and  tenements  with  menaces,  force  and  arms,  and  without 
the  authority  of  law.  This  was  formerly  allowable  to  every  person 
disseized  or  turned  out  of  possession,  unless  his  entry  was  taken  away 
or  barred  by  his  own  neglect  or  other  circumstances,  which  were  ex- 
plained more  at  length  in  a  former  book.  But  this  being  found  very 
prejudicial  to  the  public  peace,  it  was  thought  necessary,  by  several 
statutes,  to  restrain  all  persons  from  the  use  of  such  violent  methods, 
even  of  doing  themselves  justice,  and  much  more  if  they  have  no  jus- 
tice in  their  claim.  So  that  the  entry  now  allowed  by  law  is  a  peaceable 
one;  that  forbidden,  is  such  as  is  carried  on  with  force,  violence  and 
unusual  weapons."  In  this  State,  it  has  been  constantly  held  that  any 
entry  is  forcible,  within  the  meaning  of  this  law,  that  is  made  against 
the  will  of  the  occupant. 

We  state,  then,  after  a  full  examination  of  this  subject,  that  in  our 
opinion  the  statutes  of  forcible  entry  and  detainer  should  be  construed 
as  taking  away  the  previous  common  law  right  of  forcible  entry  by 


050  DERIVATIVE  TITLES  (Part  2 

the  owner,  and  that  such  entry  must  be,  therefore,  held  illegal  in  all 
forms  of  action. 

There  are,  however,  some  minor  points  upon  which  both  of  these 
judgments  must  be  reversed.  In  the  suit  brought  by  the  husband  alone, 
the  court  refused  to  instruct  the  jury  that  the  plaintiff  could  not  re- 
cover <for  any  damages  to  the  real  estate.  This  instruction  should  have 
been  given.  Although  the  occupant  may  maintain  trespass  against  the 
owner  for  a  forcible  entry,  yet  he  can  only  recover  such  damages  as 
have  directly  accrued  to  him  from  injuries  done  to  his  person  or  prop- 
erty, through  the  wrongful  invasion  of  his  possession,  and  such  exem- 
plary damages  as  the  jury  may  think  proper  to  give.  But  a  person 
having  no  title  to  the  premises,  clearly  cannot  recover  damages  for  any 
injury  done  to  them  by  him  who  has  title.  It  would  be  a  startling  doc- 
trine to  hold  that  the  wrongful  occupier  of  land  could  make  the  owner 
thereof  to  respond  to  him  in  damages  for  timber  that  the  owner  might 
cut  upon  the  premises.  This  point  was  decided  by  this  court  in  Hoots 
v.  Graham,  23  111.  82,  to  the  decision  in  which  case  we  fully  adhere. 

In  the  case  brought  by  Purdy,  the  court,  after  telling  the  jury  they 
could  give  exemplary  damages,  gave  the  following  instruction  for  the 
plaintiff: 

"In  estimating  the  amount  of  exemplary  damages,  if  they  find  any, 
the  jury  have  a  right  to  take  into  consideration  the  unlawful  purpose 
for  which  defendants  were  together,  if  any  is  proven ;  the  force  and 
violence  with  which  they  attempted  to  carry  out  that  unlawful  purpose, 
the  wantonness  of  the  attack  upon  the  premises,  family  and  property 
of  the  plaintiff,  if  the  proof  show  any  such,  and  the  willfulness  of  the 
defendants  in  doing  the  acts,  if  the  evidence  show  any  such." 

The  suit  brought  by  Purdy  and  wife  had  been  already  tried,  and  in 
that  suit  the  jury  had  been  instructed  they  might  give  exemplary 
damages,  and  they  had  undoubtedly  given  them.  The  record  of  that 
suit  was  in  evidence  on  the  trial  of  the  second  suit.  The  court  refused 
the  instructions  asked  by  the  defendant,  and  properly,  in  the  form  they 
were  drawn,  except  as  to  the  one  already  considered.  Neither  is  there 
anything  in  itself  wrong  in  the  foregoing  instruction,  and  yet  it  is  of 
such  a  character,  that  the  court,  in  order  to  secure  a  fair  consideration 
of  the  case  by  the  jury,  and  having  refused  all  the  instructions  drawn 
by  the  defendant,  should,  of  its  own  motion,  have  modified  the  some- 
what augmentative  effect  of  this  one  by  telling  the  jury  that  they  were 
also,  in  estimating  the  exemplary  damages,  to  consider  the  fact  that 
the  jury  in  the  other  suit  had  been  authorized  to  give  exemplary  dam- 
ages, and  to  take  into  consideration  on  that  question  the  amount  of  the 
verdict  in  the  other  case.  We  must  hold,  that,  in  strict  law,  exemplary 
damages  are  recoverable  in  both  cases,  because  the  suits  are  brought  in 
dift"erent  rights.  In  the  suit  by  Purdy  and  wife,  if  Purdy  fails  to  col- 
lect the  judgment  in  his  lifetime,  on  his  death  it  would  go  to  the  wife 
surviving  him,  and  not  to  his  personal  representatives.  But,  apart  from 
that  contingency,  the  fruits  of  both  judgments  go  into  his  pocket.     It 


Ch,  5)  ESTATES  CREATED  651- 

would,  therefore,  be  highly  proper  that  the  jury,  in  considering  the 
question  of  punitive  damages,  should  have  taken  into  consideration  not 
only  the  circumstances  of  aggravation  enumerated  in  the  instruction, 
but  also  the  fact,  that  these  same  circumstances,  and  the  same  transac- 
tion, had  been  submitted  to  another  jury,  in  a  suit  prosecuted  in  reality 
for  the  benefit  of  the  same  plaintiff,  and,  so  far  as  related  to  the  single 
question  of  the  amount  of  vindictive  damages,  the  amount  of  the  for- 
mer verdict  would  have  been  a  proper  subject  of  regard. 

The  jury  were  also  told  in  the  third  instruction  for  the  plaintiff,  at 
the  suit  of  Purdy,  that  the  fact,  that  the  defendant  was  the  owner  and 
entitled  to  the  possession  of  the  premises  occupied  by  the  plaintiff  could 
not  be  regarded  by  the  jury  in  mitigation  of  any  actual  damages  caused 
to  the  plaintiff  by  the  assault  and  force.  This  is  undoubtedly  true  so 
far  as  actual  damage  was  concerned,  but  it  would  not  be  true  in  regard 
to  exemplary  damages,  unless  we  are  prepared  to  say,  that  it  is  as  inex- 
cusable for  a  person  to  attempt  to  recover  his  own  property  by  force  as 
it  would  be  to  attempt  to  rob  another  of  property  to  which  the  assailant 
had  no  claim.  This  would  not  be  contended,  and  while,  therefore,  the 
third  instruction  was  strict  law,  yet,  in  connection  with  the  other  in- 
structions in  regard  to  exemplary  damages,  and  unexplained  by  any- 
thing in  behalf  of  the  defendant,  we  think  the  jury  would  be  likely  to 
be  misled.  This  is  more  especially  true  in  regard  to  the  suit  of  Purdy 
and  wife,  for  in  the  third  instruction  for  the  plaintiff  in  that  suit,  the 
jury  are  told  the  same  thing  as  to  damages,  but  the  word  actual  is  left 
out  These  instructions  should  have  been  so  modified,  that  the  jury 
would  clearly  understand  on  the  question  of  vindictive  damages,  they 
would  have  a  right  to  regard  the  fact,  that  the  defendant  was  the  owner 
and  entitled  to  the  possession  of  the  property,  a  fact  proven  in  the  case. 

This  last  objection  applies  equally  to  the  instructions  in  both  cases. 
The  others  above  considered  apply  only  to  the  suit  of  Purdy.  There 
is,  however,  another  fatal  objection  to  the  judgment  in  favor  of  Purdy 
and  wife.  Both  counts  in  that  declaration  are  for  injuries  done  to  the 
person  of  the  wife.  A  suit  could  not  have  been  maintained  in  their 
joint  names  for  injuries  done  to  the  property  of  Purdy.  Yet  the  court, 
against  the  objections  of  defendants,  allowed  the  plaintiff  to  give  in 
evidence  the  injury  done  to  the  furniture.  This  was  wholly  inadmissi- 
ble, except  so  far  as  might  be  necessary  to  explain  the  assault  on  the 
person  of  the  wife,  and,  in  a  case  of  this  character,  notwithstanding 
the  instruction  given  for  the  defendants,  this  evidence  would  have  a 
strong  tendency  to  improperly  prejudice  them  in  the  minds  of  the  jury. 

In  order  to  prevent  misapprehension  we  would  say,  in  conclusion, 
that,  for. a  mere  entry  by  the  landlord  upon  the  possession  of  his  tenant 
holding  over,  unaccompanied  by  any  trespass  upon  either  the  person 
or  personal  property  of  the  occupant,  only  nominal  damages  could  be 
recovered,  because  the  plaintiff  has  no  legal  right  to  the  possession. 
The  gravamen  of  actions  of  this  character  is  the  trespass  to  the  person, 
and  goods  and  chattels  of  the  tenant.     If,  for  example,  a  tenant  of  a 


652  DERIVATIVE  TITLES  (Part  2 

house  should  remove  his  family  and  furniture  at  the  end  of  the  term, 
but  refuse,  without  reason,  to  surrender  the  key  to  his  landlord,  and 
still  claim  the  possession,  the  landlord  might,  nevertheless,  force  the 
door  of  his  vacant  house,  without  incurring  a  liability  to  more  than 
nominal  damages.  He  would  be  liable  to  an  action  of  forcible  entry 
and  detainer,  and  to  an  action  of  trespass,  in  which  nominal  damages 
would  be  recovered,  because  the  entry  would  be  unlawful,  but  to  noth- 
ing more.  But  for  an  entry,  while  the  house  is  still  occupied  by  the 
family  and  furniture  of  the  tenant,  and  for  forcibly  thrusting  them  into 
the  street,  or  attempting  to  do  so,  he  would  be  liable  to  such  damage 
as  a  jury  might  deem  the  case  to  require.  A  landlord,  however,  would 
have  the  right  to  enter  upon  the  possession  of  his  tenant  for  certain 
purposes,  as  to  demand  rent  or  to  make  necessary  repairs,  and  we  must 
be  understood  as  confining  the  action  of  trespass  quare  clausum  by  the 
tenant  against  the  landlord,  even  for  the  recovery  of  nominal  damages, 
to  those  cases,  where  an  action  of  forcible  entry  and  detainer  would 
lie  under  our  statute.  By  the  application  of  this  principle  much  of  the 
apparent  conflict  in  the  authorities  can  be  explained. 

The  judgment  in  both  of  these  cases  must  be  reversed  and  the  case 
remanded.    Reversed  and  remanded.^* 


LOW  v.  ELWELU 

(Supreme  Judicial  Court  of  Massachusetts,  1876.    121  Mass.  309,  23  Am. 

Rep.  272.) 

Tort  for  an  assault  in  forcibly  ejecting  the  plaintiff  from  her  dwell- 
ing house. 

At  the  trial  in  the  Superior  Court,  before  Brigham,  C.  J.,  it  appeared 
that  the  plaintiff  was  the  wife  of  John  C.  Low,  who  had  hired  a  house 
of  Josiah  Low,  the  owner  thereof,  under  an  oral  lease,  and  had  occu- 
pied the  same  for  two  years  under  that  tenancy;  and  that  in  March, 
1873,  Josiah  Low  made  a  lease  of  the  house  under  seal  to  Zeno  P. 
Elwell,  and  both  of  them  in  writing  gave  notice  to  John  C.  Low  of  this 
lease,  and  to  quit  the  premises. 

The  plaintiff  testified  that  on  April  15,  1873,  she  was  occupying  the 
house  with  her  husband  and  family,  consisting  of  her  son,  eleven  years 
of  age,  and  a  hired  servant,  and  that,  while  her  husband  was  absent 
from  home,  the  following  events  took  place:  "About  ten  o'clock  in 
the  morning,  I  saw  a  furniture  wagon  stop  in  front  of  the  house.  The 
doors  were  all  fastened.  Elwell  and  his  wife  came  to  the  back  door, 
and  tried  it.  Mrs.  Elwell  came  and  knocked  on  the  window  and  said, 
'Let  me  in.'     I  said  she  must  not  cross  the  threshold.     She  said  she 

36  Whitney  v.  Broiwn,  75  Kan.  678,  90  Pae.  277,  11  L..  K.  A.  (N.  S.)  468,  12  Ann. 
Cas.  7G8  (1907) ;  Entelman  v.  Hagood,  95  Ga.  390.  22  S.  E.  ,545  (1895) :  Noel 
V.  McCrory,  7  Cold.  (Tenn.)  623  (1868),  dictum ;  Dustin  v.  Cowdry,  23  Vt.  631 
(1851),  ace 


Ch.  5)  ESTATES   CREATED  653 

should  come  in,  she  had  a  deed  of  the  place.  They  went  away,  and  I 
heard  a  noise  at  the  front  door.  I  was  combing  my  hair:  I  opened 
the  door  into  the  front  entry,  and  found  the  front  door  open,  the  bolt 
lying  on  the  floor,  and  Elwell  and  his  wife  standing  on  the  step,  he 
having  an  iron  bar  in  his  hand.  The  door  had  been  bolted  by  me  be- 
fore that  time.  I  forbade  their  crossing  the  threshold,  but  they  came 
in.  Elwell  said,  'You  forbid  my  crossing  the  threshold.  I  own  this 
house,  and  want  you  to  go  out.'  I  told  him  not  to  lay  his  hands  on 
me.  They  then  proceeded  to  take  out  the  furniture,  carpets,  etc.,  and 
to  bring  in  their  own.  My  boy  was  by  my  side.  The  hired  man  was 
near  me,  and  Elwell  took  him  by  the  collar  and  put  him  out.  There 
were  six  men  with  them  in  the  street.  They  were  not  at  the  door  at 
the  time  it  was  broken,  and  did  not  do  anything  except  remove  fur- 
niture. Mr.  Josiah  Low  was  one  of  them.  The  others  were  neigh- 
bors and  men  who  had  brought  the  defendants'  furniture  from 
Gloucester.  I  remained  in  the  house,  most  of  the  time  in  my  bed- 
room, until  about  half  past  two  o'clock  in  the  afternoon.  All  my  fur- 
niture had  been  removed,  except  a  box  on  which  I  was  sitting.  El- 
well came  to  me  and  removed  me  by  force  from  the  box,  and  carried 
it  out.  Afterwards  he  came  to  me  and  directed  me  to  leave  the  house, 
which  I  refused  to  do.  He  then  took  me  by  the  shoulders  and 
ran  me  out  of  the  house,  from  my  bedroom,  through  the  sitting-room, 
into  the  street.  My  boy  followed  me.  Elwell  said,  in  his  wife's  pres- 
ence, that  he  was  acting  under  her  directions."  ,  It  was  admitted  that 
she  was  jointly  liable  with  him  for  whatever  was  done,  if  either  was 
liable ;  and  that,  if  they  had  the  right  to  remove  the  plaintiff  by  force, 
at  the  time  she  was  removed,  no  more  force  was  used  than  was  rea- 
sonably necessary  in  either  instance. 

The  case  was  reported,  by  consent  of  parties,  before  verdict,  to  this 
court;  the  parties  agreeing  that  if,  upon  these  facts,  the  defendants 
could  not  justify  the  acts  admitted  to  have  been  done  by  them,  the 
case  was  to  stand  merely  for  an  assessment  of  damages;  if  other- 
wise, the  plaintiff  should  become  nonsuit. 

The  case  was  argued  in  November  1875,  and  was  afterwards  sub- 
mitted on  briefs  to  the  whole  court. 

Gray,  C.  J.  A  tenant  holding  over  after  the  expiration  of  his  ten- 
ancy is  a  mere  tenant  at  sufferance,  having  no  right  of  possession 
against  his  landlord.  If  the  landlord  forcibly  enters  and  expels  him, 
the  landlord  may  be  indicted  for  the  forcible  entry.  But  he  is  not  liable 
to  an  action  of  tort  for  damages,  either  for  his  entry  upon  the  prem-, 
ises,  or  for  an  assault  in  expelling  the  tenant,  provided  he  uses  no  more 
force  than  is  necessary.  The  tenant  cannot  maintain  an  action  in 
the  nature  of  trespass  quare  clausum  fregit,  because  the  title  and 
the  lawful  right  to  the  possession  are  in  the  landlord,  and  the  ten- 
ant, as  against  him,  has  no  right  of  occupation  whatever.  He  can- 
not maintain  an  action,  in  the  nature  of  trespass  to  his  person,  for  a 
subsequent  expulsion  with  no  more  force  than  necessary  to  accomplish 


654  DERIVATIVE  TITLES  (Part  2 

the  purpose;  because  the  landlord,  having  obtained  possession  by  an 
act  which,  though  subject  to  be  punished  by  the  public  as  a  breach 
of  the  peace,  is  not  one  of  which  the  tenant  has  any  right  to  complain, 
has,  as  against  the  tenant,  the  right  of  possession  of  the  premises ; 
and  the  landlord,  not  being  liable  to  the  tenant  in  an  action  of  tort  for 
the  principal  act  of  entry  upon  the  land,  cannot  be  liable  to  an  action 
for  the  incidental  act  of  expulsion,  which  the  landlord,  merely  be- 
cause of  the  tenant's  own  unlawful  resistance,  has  been  obliged  to  re- 
sort to  in  order  to  make  his  entry  effectual.  To  hold  otherwise  would 
enable  a  person,  occupying  land  utterly  without  right,  to  keep  out 
the  lawful  owner  until  the  end  of  a  suit  by  the  latter  to  recover  the  pos- 
session to  which  he  is  legalV  entitled. 

This  view  of  the  law,  notwithstanding  some  inconsistent  opinions, 
is  in  accordance  with  the  current  of  recent  decisions  in  England  and  in 
this  Commonwealth. 

In  Turner  v,  Meymott,  7  Moore,  574,  s.  c.  1  Bing.  158,  it  was  de- 
cided that  a  tenant  whose  term  had  expired  could  not  maintain  tres- 
pass against  his  landlord  for  forcibly  breaking  and  entering  the'  house 
in  his  absence.  In  Hillary  v.  Gay,  6  C.  &  P.  284,  indeed.  Lord  Lynd- 
hurst  at  nisi  prius,  while  recognizing  the  authority  of  that  decision, 
ruled  that  if  the  landlord,  after  the  expiration  of  the  tenancy,  by 
force  put  the  tenant's  wife  and  furniture  into  the  street,  he'  was  lia- 
ble to  an  action  of  trespass  quare  clausum  fregit.  And  in  Newton 
v.  Harland,  1  Man.  &  Gr.  644,  s.  c.  1  Scott,  N.  R.  474,  a  majority  of 
the  Court  of  Common  Pleas,  overruling  decisions  of  Baron  Parke  and 
Baron  Alderson  at  nisi  prius,  held  that  under  such  circumstances 
the  landlord  was  liable  to  an  action  of  trespass  for  assault  and  bat- 
tery. 

But  in  Harvey  v.  Brydges,  14  M.  &  W.  437,  Baron  Parke  stated  his 
opinion,  upon  the  point  raised  in  Newton  v.  Harland,  as  follows : 
"Where  a  breach  of  the  peace  is  committed  by  a  freeholder,  who,  in 
order  to  get  into  possession  of  his  land,  assaults  a  person  wrongfully 
holding  possession  of  it  against  his  will,  although  the  freeholder  may 
be  responsible  to  the  public  in  the  shape  of  an  indictment  for  a  forci- 
ble entry,  he  is  not  liable  to  the  other  party.  I  cannot  see  how  it 
is  possible  to  doubt  that  it  is  a  perfectly  good  justification  to  say  that 
the  plaintiff  was  in  possession  of  the  land  against  the  will  of  the 
defendant,  who  was  owner,  and  that  he  entered  upon  it  accordingly; 
even  though,  in  so  doing,  a  breach  of  the  peace  was  committed." 
Baron  Alderson  concurred,  and  said  that  he  retained  the  opinion  that 
he  expressed  in  Newton  v.  Harland,  notwithstanding  the  decision  of 
the  majority  of  the  Court  of  Common  Pleas  to  the  contrary.  The 
opinion  thus  deliberately  adhered  to  and  positively  declared  by  those 
two  eminent  judges,  though  not  required  by  the  adjudication  in  Har- 
vey V.  Brydges,  is  of  much  weight.  In  Davis  v.  Burrell,  10  C.  B. 
821,  825,  Mr.  Justice  Cresswell  said,  that  the  doctrine  of  Newton  v. 
Harland  had  been  very  much  questioned.    And  it  was  finally  overruled 


Ch.  5)  ESTATES  CREATED  655 

in  Blades  v.'  Hig-gs,  10  C.  B.  (N.  S.)  713,  where,  in  an  action  for  an 
assault  by  forcibly  taking  the  defendant's  property  from  the  plaintiff's 
hands,  using  no  more  force  than  was  necessary.  Chief  Justice  Erie, 
delivering  the  unanimous  judgment  of  the  court,  approved  the  state- 
ment of  Baron  Parke,  above  quoted,  and  added:  "In  our  opinion, 
all  that  is  so  said  of  the  right  of  property  in  land  applies  in  principle 
to  a  right  of  property  in  a  chattel  and  supports  the  present  justifica- 
tion. If  the  owner  was  compellable  by  law  to  seek  redress  by  action 
for  a  violation  of  his  right  of  property,  the  remedy  would  be  often 
worse  than  the  mischief,  and  the  law  would  aggravate  the  injury, 
instead  of  redressing  it."  See  also  Lows  v.  Telford,  1  App.  Cas.  414, 
426." 

In  Commonwealth  v.  Haley,  4  Allen,  318,  the  case  was  upon  an  in- 
dictment for  forcible  entry,  and  no  opinion  was  required  or  ex- 
pressed as  to  the  landlord's  liability  to  a  civil  action. 

The  judgment  in  Sampson  v.  Henry,  11  Pick.  379,  turned  upon  a 
question  of  pleading.  The  declaration,  which  was  in  trespass  for  an 
assault  and  battery,  alleged  that  the  defendant  assaulted  the  plain- 
tiff, and  with  a  deadly  weapon  struck  him  many  heavy  and  dangerous 
blows. ~  The  pleas  of  justification  merely  averred  that  the  defendant 
was  seised  and  had  the  right  of  possession  of  a  dwelling-house,  that 
the  plaintiff  was  unlawfully  in  possession  thereof  and  forcibly  opposed 
the  defendant's  entry,  and  that  the  defendant  used  no  more  force 
than  was  necessary  to  enable  him  to  enter  and  to  overcome  the 
plaintiff's  resistance;  but  did  not  deny  the  use  of  the  dangerous  weap- 
on and  the  degree  of  violence  alleged  in  the  declaration ;  and  were 
therefore  held  bad,  in  accordance  with  Gregory  v.  Hill,  8  T.  R.  299, 
there  cited.  The  remarks  of  Mr.  Justice  Wilde,  denying  the  right  of 
a  party  dispossessed  to  recover  possession  by  force  and  by  a  breach  of 
the  peace,  would,  if  construed  by  themselves,  and  extended  beyond 
the  case  before  him,  allow  the  tenant  to  maintain  an  action  of  tres- 
pass against  the  landlord  for  entering  the  dwelling-house,  in  direct 
opposition  to  the  judgment  delivered  by  the  same  learned  judge,  in 
another  case,  between  the  same  parties,  argued  at  the  same  term  and 
decided  a  year  after.     Sampson  v.  Henry,  13  Pick.  36. 

In  the  latter  case,  which  was  an  action  for  breaking  and  entering 
the  plaintiff's  close,  and  for  an  assault  and  battery  upon  him,  the 
court  held  that  the  plea  of  liberum  tenementum  was  a  good  justifica- 
tion of  the  charge  of  breaking  and  entering  the  house,  but  not  of  the 
personal  assault  and  battery.  That  decision,  so  far  as  it  held  that  the 
landlord  was  not  liable  to  an  action  of  trespass  quare  clausum  fregit 
by  a  tenant  at  sufferance  for  a  forcible  entry,  has  been  repeatedly 

S7  In  Edwiek  v.  Hawkes,  IS  Ch.  D.  199  (1881),  Fry,  J.,  approved  of  the  doc- 
trine of  Newton  v.  Harhmd,  and  allowed  daiiiases  for  injuries  done  to  the  plain- 
tiff's wife  on  account  of  a  forcible  entry.  The  judge  said  that  persons  who 
have  a  right  of  entry  on  land  must  enter  "in  a  peaceable  and  easy  manner, 
and  if  they  cannot  do  so  they  must  resort  to  the  courts." 


656  DERIVATIVE  TITLES  (Part  2 

affirmed.  Header  v.  Stone,  7  Mete.  147;  Miner  v.  Stevens,  1  Cush. 
482,  485;  Mason  v.  Holt,  1  Allen,  45;  Curtis  v.  Galvin,  1  Allen,  215; 
Moore  v.  Mason,  1  Alien,  406.  And,  so  far  as  it  allowed  the  plain- 
tiff to  recover,  in  such  an  action  damages  for  the  incidental  injury  to 
him  or  to  his  personal  property,  it  has  been  overruled.  Eames  v.  Pren- 
tice, 8  Cush.  ZZ7 ;  Curtis  v.  Galvin,  ubi  supra. 

It  has  also  been  adjudged  that  a  landlord,  who,  having  peaceably 
entered  after  the  termination  of  the  tenancy,  proceeds,  against  the  ten- 
ant's opposition,  to  take  out  the  windows  of  the  house,  or  to  forcibly 
eject  the  tenant,  is  not  liable  to  an  action  for  an  assault,  if  he  uses 
no  more  force  than  is  necessary  for  the  purpose.  Mugford  v.  Rich- 
ardson, 6  Allen,  76,  83-  Am.  Dec.  617;  Winter  v.  Stevens,  9  Allen, 
526.  For  the  reasons  already  stated,  we  are  all  of  opinion  that  a  per- 
son who  has  ceased  to  be  a  tenant,  or  to  have  any  lawful  occupancy, 
has  no  greater  right  of  action  when  the  force  exerted  against  his  person 
is  contemporaneous  with  the  landlord's  forcible  entry  upon  the  prem- 
ises. 

Our  conclusion  is  supported  by  the  American  cases  of  the  greatest 
weight.  Jackson  v.  Farmer,  9  Wend.  (N.  Y.)  201 ;  Overdeer  v.  Lewis, 
1  Watts  &  S.  (Pa.)  90,  Z7  Am.  Dec.  440;  Kellam  v.  Janson,  17  Pa.  467; 
Stearns  v.  Sampson,  59  Me.  568,  8  Am.  Rep.  442 ;  Sterling  v.  Warden, 
51  N.  H.  217,  12  Am.  Rep.  80.  The  opposing  decisions  are  so  crit- 
ically and  satisfactorily  examined  in  an  elaborate  article  upon  this 
subject  in  4  Am.  Law  Rev.  429,  that  it  would  be  superfluous  to  refer 
to  them  particularly. 

The  tenancy  of  the  plaintiff's  husband  under  an  oral  lease  was  but  a 
tenancy  at  will,  which,  by  the  written  lease  from  his  landlord  to  the 
defendant,  and  reasonable  notice  thereof,  was  determined,  and  he 
became  a  mere  tenant  at  sufferance.  Pratt  v.  Farrar,  10  Allen,  519. 
It  being  admitted  that,  if  the  defendants  had  the  right  to  remove 
the  plaintiffs  by  force,  no  more  force  was  used  than  was  reasonably 
necessary,  this  action  cannot  be  maintained. 

Plaintiff  nonsuit.^* 

38  Vinson  v.  Flynn,  64  Ark.  453,  43  S.  W.  146,  40  S.  W.  1S6,  39  K  R.  A.  415 
(1897) ;  Allen  v.  Kelly,  17  R.  I.  731,  24  Atl.  776,  16  L.  R.  A.  798,  33  Am.  St.  Rep. 
905  (1892),  ace.  See,  also,  Hus;£ans  v.  Bridges,  29  Pa.  Super.  Ct.  R.  82  (1905; ; 
Rush  V.  Aiken  Mfg.  Co.,  58  S.  C.  145,  36  S.  E.  497,  79  Am.  St.  Rep.  836  (1900), 
repudiating  views  earlier  expressed  in  Sbarp  v.  Kinsman,  IS  S.  C.  108  (1882). 

In  Smitii  V.  Detroit  L.  &  B.  Ass'n,  115  Mich.  310,  73  N.  W.  395  (1897),  the 
landlord,  in  the  tenant's  temporary  absence  after  the  expiration  of  the  term, 
entered  upon  the  premises  and  broke  into  the  house,  removed  the  furniture  to 
an  outbuilding,  and  then  forcibly  prevented  the  return  of  the  tenant.  It  was 
held  that  the  tenant  had  no  cause  of  action.  Bliss  v.  Johnson,  73  N.  Y.  529 
(1878) ;  Mussey  v.  Scott,  32  Vt.  82  (1859) ;  Davis  v.  Burrell,  10  C.  B.  821  (1851), 
ace.  Wilder  v.  House,  48  111.  279  (1868) ;  Mason  v.  Hawes,  52  Conn.  12,  52  Am. 
Rep.  552  (1884),  contra. 

Occasionally  it  has  been  declared  that,  while  there  is  no  basis  for  an  action 
by  the  forcibly  ejected  tenant  in  trespass  quare  clausam,  there  may  be  a  re- 
covery for  trespass  to  the  person  or  goods,  even  though  there  may  have  been 


Ch.  5)  ESTATES  CREATED  657 

LAYTON  V.  FIELD. 

(Court  of  King's  Bench,  1701.     3  Salk.  222.) 

Per  Holt,  Ch.  Just.  Where  a  lease  is  made  at  will,  the  lessee,  after 
a  quarter  of  a  year  is  commenced,  may  determine  his  will,  but  then 
he  must  pay  that  quarter's  rent;  and  if  the  lessor  determine  his  will 
after  the  commencement  of  a  quarter,  he  shall  lose  his  rent  for  that 
quarter;  but  if  a  lease  be  made  from  year  to  year,  quamdiu  ambabus 
partibus  placuerit;  in  such  case,  after  a  year  is  commenced,  neither 
the  lessor  nor  the  lessee  can  determine  their  wills  for  that  year,  because 
they  have  willed  the  estate  certain  for  so  long  time. 


BRAYTHWAYTE  v.  HITCHCOCK. 
(Court  of  Exchequer,  1S42.     10  Mees.  &  W.  494.) 

Debt  for  rent.  The  first  count  of  the  declaration  stated  a  demise, 
on  the  26th  of  October,  1840,  from  the  plaintiff  to  William  Hitch- 
cock, of  a  messuage  and  premises,  to  hold  for  one  year  from  the 
25th  of  December  then  last,  and  so  on  from  year  to  year  if  the  plain- 
tiff and  the  said  William  Hitchcock  should  respectively  please,  at  the 
annual  rent  of  £140.,  payable  quarterly  on  &c. :  that,  during  the  said 
tenancy,  to  wit,  on  the  17th  July,  1841,  all  the  estate  and  interest  of 
the  said  W.  Hitchcock  in  the  said  messuage  and  premises  came  to  and 
vested  in  the  defendant,  by  assignment  from  the  said  W.  Hitchcock : 
and  alleged  as  a  breach  the  nonpayment  by  the  defendant  of  £35.,  a 
quarter's  rent  due  at  Christmas,  1841.  There  was  also  a  count  on  an 
account  stated. 

The  defendant  pleaded,  first,  nunquam  indebitatus ;  secondly  (to 
the  first  count,)  a  denial  of  the  demise  of  W.  Hitchcock :  and  thirdly 
(to  the  first  count,)  a  denial  that  the  estate  and  interest  of  W.  Hitch- 
cock vested  in  him  the  defendant:   on  which  issues  were  joined. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  Middlesex  sittings 
after  last  term,  the  plaintiff  put  in  evidence  an  agreement,  dated  the 
17th  December,  1840,  and  signed  by  the  plaintiff  only,  whereby  the 
plaintiff  agreed  to  exiecute  a  lease  of  a  cottage,  &c.  to  W.  Hitch- 
cock, for  seven  years,  at  a  yearly  rent  of  £140.,  payable  quarterly.  It 
was  proved  that  no  lease  had  been  executed  in  pursuance  of  tlie  agree- 
no  excessive  force.  See  Levy  v.  McClintock,  141  Mo.  App.  593,  125  S.  W.  546 
(1909) ;   Steams  v.  Sampson,  59  Me.  56S,  S  Am.  Rep.  442  (1871),  semble. 

As  to  what  amounts  to  a  forcible  entry  under  the  forcible  entry  and  detainer 
statutes,  see  Smith  v.  Detroit  L.  &  B.  Ass'n,  supra. 

On  the  right  of  a  forcibly  ejected  wrongful  possessor  to  proceed  under  the 
forcible  entry  and  detainer  statutes  asainst  the  ejector,  who  was  entitled  to 
possession,  see  Page  v.  Dwtght,  170  Mass.  29,  48  N.  E.  850,  39  L.  R.  A.  418 
(1S97). 

Aig.Pbop. — 12 


G58  DERIVATIVE  TITLES  (Part  2 

ment,  but  that  W.  Hitchcock  had  entered  into  possession  of  the  cottage 
shortly  after  the  date  of  the  agreement,  and  had  paid  two  quarters' 
rent  up  to  Midsummer,  1841,  at  the  rate  of  £140.  a  year.  The  plaintiff 
then  proved  a  notice  to  the  defendant  to  produce  a  deed  of  assign- 
ment, bearing  date  the  17th  July,  1841,  of  the  cottage,  from  W. 
Hitchcock  to  the  defendant;  and  on  its  nonproduction,  called  a  wit- 
ness, who  produced  a  paper  which  he  said  was  a  true  copy  of  the  orig- 
inal assignment,  which  he  had  read  and  compared  with  it.  It  was 
objected  that  this  copy  could  not  be  read  in  evidence  for  want  of  a 
stamp ;  but  the  Lord  Chief  Baron  overruled  the  objection,  and  the  copy 
was  read :  from  which  it  appeared,  that  by  the  deed  of  assignment, 
which  was  executed  both  by  W.  Hitchcock  and  the  defendant,  after 
reciting  the  agreement  of  the  17th  December,  1840,  and  that  no  lease 
had  been  executed  in  pursuance  thereof,  W.  Hitchcock  assigned  to  the 
defendant,  his  executors,  &c.,  all  the  said  agreement,  and  all  benefit 
and  advantage  thereof,  and  all  his  estate,  title,  and  interest  therein,  to 
hold  to  the  defendant,  his  executors,  &c.,  absolutely,  subject  never- 
theless to  a  proviso  for  redemption.  It  was  contended  for  the  defend- 
ant, that  there  was  no  sufficient  evidence  of  a  demise  whereby  a  tenancy 
from  year  to  year  was  created,  as  alleged  in  the  declaration.  The  Lord 
Chief  Baron  overruled  the  objection,  and  the  plaintiff'  had  a  verdict 
for  iZ}).,  leave  being  reserved  to  the  defendant  to  move  to  enter  a  non- 
suit, if  the  Court  should  be  of  opinion  that  there  was  no  sufficient  evi- 
dence of  the  assignment. 

Erie  now  moved  accordingly  for  a  rule  to  enter  a  nonsuit,  and  also 
for  a  new  trial,  on  the  ground  that     *     *     * 

Secondly,  under  the  agreement  recited  in  the  deed,  W.  Hitchcock 
was  a  mere  tenant  at  will,  no  lease  having  been  executed,  and  there 
was  not  sufficient  evidence  from  which  to  infer  a  demise  from  year  to 
year,  as  alleged  in  the  declaration.  He  had  therefore  no  assignable 
interest  in  the  premises.  He  referred  to  Brashier  v.  Jackson,  6  M.  & 
W.  549. 

Lord  Abixger,  C.  B.^°  I  think  the  evidence  was  sufficient  to  show 
a  tenancy  from  year  to  year,  under  the  agreement  which  was  duly 
executed  by  the  plaintiff;  the  cases  which  have  been  decided  on  this 
point  go  fully  at  length.  Here  there  is  the  additional  fact  of  an  ad- 
mission under  the  defendant's  hand,  in  the  deed  of  assignment,  that 
an  agreement  for  the  lease  was  executed  by  the  plaintiff.  But  the 
plaintiff's  case  does  not  rest  solely  on  the  agreement  to  let;  there  is 
the  fact  of  William  Hitchcock  having  been  in  the  possession  of  the  cot- 
tage for  more  than  a  year,  and  having  paid  two  quarters'  rent  under 
the  agreement.  William  Hitchcock  had  therefore  an  assignable  inter- 
est, which  passed  to  the  defendant  under  the  deed  proved  at  the  trial. 
As  to  the  other  point,  I  think  the  provisions  of  the  Stamp  Acts  relate 
only  to  such  copies  as  are  evidence  per  se,  and  that  the  word  "copy" 

39  Part  of  the  statement  is  omitted. 


Ch.  5)  ESTATES   CREATED  659 

there  means  an  authenticated  copy,  receivable  as  evidence  in  the  first 
instance.  Here  the  copy  was  evidence,  only  because  the  party  who 
produced  it  had  compared  it  with  the  original,  and  swore  to  the  con- 
tents of  it,  word  for  word. 

Parke,  B.  I  am  of  the  same  opinion.  Although  the  law  is  clearly 
settled,  that  where  there  has  been  an  agreement  for  a  lease,  and  an 
occupation  without  payment  of  rent,  the  occupier  is  a  mere  tenant 
at  will;  yet  it  has  been  held  that  if  he  subsequently  pays  rent  under 
that  agreement  he  thereby  becomes  tenant  from  year  to  year.  Pay- 
ment of  rent,  indeed,  must  be  understood  to  mean  a  payment  with  ref- 
erence to  a  yearly  holding;  for  in  Richardson  v.  Langridge,  4  Taunt, 
128,  a  party  who  had  paid  rent  under  an  agreement  of  this  descrip- 
tion, but  had  not  paid  it  with  reference  to  a  year,  or  any  aliquot  part  of 
a  year,  was  held  nevertheless  to  be  a  tenant  at  will  only.  In  the 
present  case,  there  was  a  distinct  proof  of  the  payment  of  rent  for  two 
(fjarters  of  a  year.  There  is  the  additional  fact  of  an  occupation  for 
more  than  a  year;  but  in  the  case  of  Cox  v.  Bent,  5  Bing.  185,  2  M.  & 
P.  281,  where  a  party,  under  an  agreement  for  a  lease,  had  occupied 
for  more  than  a  year,  the  Court  held  that  a  tenancy  from  year  to 
year  existed,  not  on  the  ground  of  the  occupation,  but  because  the 
party  had  during  that  occupation  paid  a  half-year's  rent.  I  think, 
therefore,  the  fact  of  such  a  payment  was  the  stronger  evidence  in  this 
case,  and  that  William  Hitchcock  may  be  taken  to  have  been  a  yearly 
tenant.  Then,  as  to  the  question  whether  there  has  been  a  due  assign- 
ment of  such  his  interest,  I  think  it  is  clear  that  there  has ;  bechuse, 
although  the  deed  in  its  commencement  recites  only  the  agreement,  the 
operative  part  of  it  conveys  and  assigns  "all  that  the  hereinbefore  re- 
cited agreement  of  the  17th  of  December,  1840,  and  all  benefit  and 
advantage  thereof,  and  all  that  and  those  the  said  messuage  or  tene- 
ment and  premises  at  &c.,  and  all  the  right,  title,  interest,  property, 
claim,  and  demand  whatsoever,  at  law  or  in  equity,  of  him  the  said 
William  Hitchcock  in  the  said  premises,"  &c.  On  the  other  point  I 
quite  agree  with  my  Lord  Chief  Baron  that  no  stamp  was  requisite, 
inasmuch  as,  though  the  document  might  in  form  have  been  read  as 
a  copy  of  the  original,  it  was  in  truth  read  only  as  a  memorandum 
to  refresh  the  memory  of  the  witness,  who  had  compared  it  with  the 
deed.*" 

40  cf.  Doe  ex  dem.  Bastow  v.  Cox,  11  Q.  B.  122  (1847) ;  Say  v.  Stoddard,  su- 
pra, p.  G42. 


660  DERIVATIVE  TITLES  (Part  2 

DOE  d.  THOMSON  v.  AMEY. 

(Court  of  Queen's  Bench,  1840.     12  Add.  &  El.  476.) 

Ejectment,  on  the  several  demises  of  Elizabeth  Thomson  and  others, 
to  recover  possession  of  a  farm  occupied  by  the  defendant. 
•  On  the  trial,  at  the  Cambridge  Spring  assizes,  1839,  before  Tindal, 
C.  J.,  it  appeared  that  on  29th  July,  1835,  articles  of  agreement  had 
been  entered  into  between  Miss  Thomson,  the  lessor  of  the  plaintiff, 
and  the  defendant,  whereby  Miss  Thomson,  for  and  on  behalf  of  her- 
self and  others,  devisees  in  trust  under  the  will  of  her  father,  in  con- 
sideration of  the  rent  and  covenants  thereinafter  mentioned  to  be  paid 
and  performed  by  tlie  defendant,  agreed  with  the  defendant,  so  far 
as  she  lawfully  could  or  might,  that  she  and  all  other  necessary,  par- 
ties should  and  would  grant  a  lease  of  the  farm  to  defendant,  except- 
ing out  of  the  said  lease  agreed  to  be  made  all  trees,  mines  &c.,  with 
liberty  of  ingress  and  egress  for  the  intended  lessors,  for  fourteen 
years,  from  11th  October  then  next,  at  a  rent  of  i346.,  payable  quar- 
terly. And  it  was  thereby  agreed,  that  there  should  be  contained  in 
the  lease  covenants  to  repair,  the  said  "intended  lessors"  finding  rough 
timber;  that  defendant  should  not  assign  without  license;  tliat  de- 
fendant should  use  the  premises  agreed  to  be  demised  in  a  husband- 
like and  proper  manner  according  to  the  best  system  of  husbandry  prac- 
tised in  that  part  of  the  country ;  that  defendant  should,  during  the  said 
term,  scour  ditches  and  drains,  and  make  and  renew  hedges ;  that  de- 
fendant would  not  destroy  any  trees,  nor  grow  two  successive  crops 
of  white  corn  or  grain  on  any  of  the  arable  land  without  summer  tilt- 
ing, or  taking  a  green  fallow  crop;  nor  sell  or  suffer  to  be  taken  off 
the  premises  any  of  the  hay  or  straw  grown,  or  manure  made  thereon, 
but  should  spend  them  on  the  premises.  And  it  was  further  agreed 
that  the  lease  should  contain  a  proviso  empowering  the  intended  lessors 
to  enter  on  the  premises  as  of  their  former  estate  in  case  defendant 
should  fail  in  observing  any  of  the  covenants  or  agreements  therein 
contained ;  and  all  other  usual  and  proper  covenants  in  leases  of  a  like 
nature.  It  was  also  agreed  that  defendant  should  execute  a  counter- 
part of  the  lease,  and  defray  the  expense  of  the  articles  of  agreement. 

The  defendant  entered  into  possession  at  the  time  fixed  for  the  com- 
mencement of  the  term,  and  continued  to  hold  and  pay  the  rent  until 
action  brought ;  but  no  further  lease  was  ever  made  or  executed. 

Before  the  commencement  of  the  action,  notice  of  several  breaches 
of  agreement  was  served  on  the  defendant  by  the  lessor  of  the  plain- 
tiff. One  of  these,  namely,  that  defendant  had  taken  successive  crops 
of  white  corn  on  the  same  land  without  summer  tilting  or  green  fal- 
low, was  satisfactorily  proved  on  the  trial,  and  the  plaintiff  had  a  ver- 
dict, subject  to  a  motion  for  a  nonsuit  on  the  grounds  hereafter  stated. 

In  the  following  term,  B.  Andrews  obtained  a  rule  nisi  in  pursuance 
of  the  leave  reserved. 


Ch.  5)  ESTATES  CREATED  661 

Lord  Denman,  C.  J.  In  this  case  the  defendant  was  let  into  pos- 
session under  an  agreement,  which  gave  the  parties  a  right  to  go  into 
equity  to  compel  the  execution  of  it  by  making  out  a  formal  lease. 
Under  such  circumstances  it  has  long  been  the  uniform  opinion  of 
Westminster  Hall,  that  the  tenant  in  possession  holds  upon  the  terms 
of  the  intended  lease.  One  of  these  terms  was,  that  the  lessee  should 
not  take  successive  crops  of  corn,  and  that  the  lessor  should  have 
power  to  re-enter  on  the  breach  of  such  agreement.  This  agreement 
and  proviso  apply  to  the  yearly  tenancy  of  tlie  defendant.  It  has  been 
argued,  that  the  terms  of  the  lease  cannot  be  applied  to  the  parol  ten- 
ancy, inasmuch  as  some  of  them,  such  as  the  agreement  for  repairs, 
are  not  usually  considered  as  applicable  to  such  tenancy.  Whether 
the  obligation  to  repair  can  be  enforced  under  such  circumstances,  at 
least  as  to  substantial  repairs,  may  perhaps  be  questionable ;  but  at  all 
events,  the  agreement  as  to  cropping  the  land  is  one  which  is  consistent 
with  a  yearly  tenancy. 

Pattkson,  J.  In  Mann  v.  Lovejoy,  Ry.  &  M.  N.  P.  C.  355,  though 
the  facts  differed  from  those  of  the  present  case,  yet,  in  principle,  the 
ruling  of  Abbott,  C.  J.,  is  in  favour  of  the  plaintiff.  It  is  said,  that  a 
covenant  respecting  the  rotation  of  crops  cannot  be  engrafted  on  a 
yearly  tenancy,  but  I  see  no  reason  why  it  should  not.  The  tenant  in 
possession  under  such  circumstances  is  bound  to  cultivate  the  land, 
as  if  he  were  going  to  continue  in  possession  as  long  as  the  lease  its.elf 
would  have  lasted.  It  is  argued,  that  the  tenancy  arises  by  operation 
of  law  upon  the  payment  of  rent,  and  that  the  law  implies  no  particu- 
lar mode  of  cropping,  nor  any  condition  of  re-entry.  But  the  terms 
upon  which  the  tenant  holds  are  in  truth  a  conclusion  of  law  from  the 
facts  of  the  case,  and  the  terms  of  the  articles  of  agreement;  and  I 
see  no  reason  why  a  condition  of  re-entry  should  not  be  as  applicable 
to  this  tenancy  as  the  other  terms  expressed  in  the  articles. 

Williams,  J.  It  is  admitted,  that,  if  this  were  a  case  of  holding 
over,  the  terms  of  the  written  agreement  wouM  apply.  In  principle, 
there  is  no  distinction  between  that  case  and  the  case  of  a  tenant  who 
enters  and  pays  rent  upon  the  faith  of  an  executory  agreement  for  a 
lease. 

Rule  discharged.** 

41  See  Doe  d.  Tilt  v.  Stratton,  4  Ring.  446  (1828).  In  Doe  d.  Eigge  v.  Bell, 
5  Term  Rep.  471  (179.3),  the  court,  Lord  Kenyon,  C.  J.,  said :  "Though  the  agree- 
ment be  void  by  the  Statute  of  Frauds  as  to  the  duration  of  the  lease,  it  must 
regulate  the  terms  on  which  the  tenancy  subsists  in  other  respects,  as  to  the 
rent,  the  time  of  the  year  when  the  tenant  is  to  quit,  etc.  So  where  a  tenant 
holds  over  after  the  expiration  of  his  term,  without  having  entered  into  any 
new  contract,  he  holds  upon  the  former  terms.  Now,  in  this  case,  it  was 
agreed,  that  the  defendant  should  quit  at  Candlemas ;  and  though  the  agree- 
ment is  void  as  to  the  number  of  years  for  which  the  defendant  was  to  hold,  if 
the  lessor  choose  to  determine  the  tenancy  before  the  expiration  of  the  seven 
years,  he  can  only  put  an  end  to  it  at  Candlemas." 


6G2  DERIVATIVE  TITLES  (Part  2 


COUDERT  V.  COHN. 

(Court  of  Appeals  of  New  York,  1890.     IIS  N.  Y.  300,  23  N.  E.  29S,  7  L.  E.  A. 
CO,  16  Am.  St.  Kep.  TGI.) 

Bradley,  J.  The  action  was  brought  to  recover  rent  of  premises  de- 
scribed in  a  written  lease  made  by  the  agent  of  the  plaintiffs'  intestate 
to  the  defendants  in  January,  1884,  for  the  term  of  two  years  and 
five  months,  commencing  on  the  first  day  of  March,  1884,  and  ending 
on  the  first  day  of  August,  1886,  at  the  yearly  rent  of  $3,000,  paya- 
ble in  equal  monthly  payments,  on  the  last  business  day  of  each  month. 
The  authority  of  the  agent  to  make  the  lease  not  being  in  writing  it 
was  void.  2  R.  S.  (1st  Ed.)  p.  134,  §  6.  The  defendants  went  into 
possession  on  tlie  first  of  IMarch,  1884,  and  continued  to  occupy  and 
pay  rent  up  to  August,  1885,  when  they  left  the  premises  and  sought 
to  surrender  the  possession  up  to  the  plaintiff's  intestate,  who  de- 
clined to  accept  it.  He  recovered  for  the  amount  of  rent  at  the  rate 
mentioned  in  the  lease  from  the  first  of  August,  to  the  first  of  March 
following.  While  the  cases  are  not  entirely  in  harmony  on  the  sub- 
ject, the  doctrine  now  in  this  state  is  such  that  the  defendants  on 
going  into  possession  of  the  premises  and  paying  rent,  became,  by  rea- 
son of  the  invalidity  of  the  demise,  tenants  from  year  to  year,  and  in 
such  case  the  continuance  of  occupancy  into  the  second  year  rendered 
them  chargeable  with  the  rent  until  its  close.  They  could  then  only 
terminate  their  tenancy  at  the  end  of  the  current  year.  Reeder  v. 
Sayre,  70  N.  Y.  180,  26  Am.  Rep.  567 ;  Laughran  v.  Smith,  T:>  N.  Y. 
205. 

The  question  presented  is :  When  did  the  rental  year  arising  out  of 
such  relation  commence  and  terminate?  It  is  contended  by  the  de- 
fendant's counsel  that  inasmuch  as  the  end  of  the  term  designated  by 
the  terms  of  the  lease  was  the  first  of  August,  1886,  that  was  the  time 
when  the  yearly  tenancy  in  contemplation  of  law  terminated,  and, 
therefore,  the  surrender  was  properly  made  on  the  first  of  August, 
1885.  It  is  urged  that  this  view  is  in  harmony  with  the  recognized 
principle  that,  although  the  lease  was  invalid  the  agreement  contained 
in  it  regulated  the  terms  of  the  tenancy  in  all  respects,  except  as  to 
the  duration  of  the  term,  and  Doe  v.  Bell,  5  D.  &  E.  471,  is  cited. 
There  a  farm  was,  in  January,  1790,  let  by  a  parole  lease,  void  by  the 
statute  of  frauds,  for  seven  years,  the  lessee  to  enter  upon  the  land 
when  the  former  tenant  left,  on  Lady-day,  and  into  the  house  on  the 
25th  of  May  following,  and  was  to  quit  at  Candlemas.  He  entered 
accordingly  and  paid  rent.  A  notice  was  served  upon  the  tenant  Sep- 
tember 22d,  1792,  to  quit  on  Lady-day.  In  ejectment  brought  against 
him  it  was  claimed,  on  the  part  of  the  lessee,  that  his  holding  was 
from  Candlemas,  and,  therefore,  the  notice  was  ineffectual  to  termi- 
nate the  tenancy.  Lord  Kenyon,  in  deciding  the  case,  said  and  held 
that  "it  was  agreed  that  the  defendant  should  quit  at  Candlemas,  and 


Ch.  5)  ESTATES  CREATED  063 

though  the  agreement  is  void  as  to  the  number  of  years  for  which 
the  defendant  was  to  hold,  if  the  lessor  choose  to  determine  the  ten- 
ancy before  the  expiration  of  the  seven  years,  he  can  only  put  an  end 
to  it  at  Candlemas."  That  case  has  in  several  instances  been  cited  by 
the  courts  of  this  state  upon  the  question  of  the  force  remaining  in 
the  terms  of  the  agreement  embraced  in  a  void  lease.  And  in  Schuyler 
V.  Leggett,  2  Cow.  663,  it  was  remarked  by  Chief  Justice  Savage,  in 
citing  it,  that  such  an  agreement  "must  regulate  the  terms  on  which 
the  tenancy  subsists  in  other  respects;  as  the  rent,  the  time  of  year 
when  the  tenant  must  quit,  etc."  And  the  citation  was  repeated  to 
the  same  effect  by  the  Chief  Justice  in  People  v.  Rickert,  8  Cow. 
230. 

The  question  here  did  not  arise  in  either  of  those  two  cases,  nor 
can  they  be  treated  as  authority  that  the  time  for  termination  of  a 
tenancy  from  year  to  year,  in  any  year  other  than  that  of  the  desig- 
nated expiration  of  term,  is  governed  by  such  designation  in  a  void 
lease  for  more  than  one  year  rather  than  by  the  time  of  entry.  The 
effect  sought  to  be  given  in  the  present  case  to  the  case  of  Doe  v. 
Bell  is  not  supported  by  English  authority.  In  Berrey  v.  Lindley,  3 
M,  &  G.  496,  the  tenant  entered  into  possession  of  premises  under 
an  agreement  void  by  the  statute  of  frauds,  by  the  terms  of  which 
he  was  to  hold  five  years  and  a  half  from  Michaelmas.  Several  years 
after  his  entry,  and  after  expiration  of  the  period  mentioned  in  the 
agreement,  the  lessee  gave  notice  to  his  landlord  to  terminate  the  ten- 
ancy at  Michaelmas.  It  was  there  contended  on  the  part  of  the  lat- 
ter, and  Doe  v.  Bell  was  cited  in  support  of  the  proposition,  that  the 
time  designated  in  the  agreement  for  the  termination  of  the  tenancy 
governed  in  that  respect.  But  the  court  decided  otherwise,  ^nd  held 
that  the  notice  was  effectual  to  terminate  the  tenancy.  The  views  of 
the  court  there  were  to  the  effect,  that,  although  the  tenancy  was  from 
year  to  year,  the  tenant  might  without  notice  have  quit  at  the  expira- 
tion of  the  period  contemplated  in  the  agreement,  but  having  remained 
in  possession  and  paid  rent  subsequently  to  that  time,  he  must  be 
considered  a  tenant  from  year  to  year  with  reference  to  the  time  of 
the  original  entry. 

The  same  principle  in  respect  to  holding  over  a  term  was  announced 
in  Doe  v.  Dobell,  1  A.  &  E.  (N.  R.)  806,  where  it  was  said  that  "in  all 
cases  the  current  year  refers  to  the  time  of  entry  unless  the  parties 
stipulate  to  the  contrary." 

The  doctrine  of  the  English  cases  seems  to  be  that  a  party  entering 
under  a  lease,  void  by  the  statute  of  frauds,  for  a  term,  as  expressed 
in  it,  of  more  than  one  year,  and  paying  rent  is  treated  as  a  tenant 
from  year  to  year  from  the  time  of  his  entry,  subject  only  to  the  right 
to  terminate  the  tenancy  without  notice  at  the  end  of  the  specified 
term.  And  to  that  extend  and  for  that  purpose  only,  the  terms  of 
agreement,  in  such  case,  regulate  the  time  to  quit.  This  right  is  held 
to  be  reciprocal.     Doe  v.  Stratton,  4  Bing.  446.     That  proposition  is 


664:  DERIVATIVE  TITLES  (Part  2 

not  without  sensible  reason,  for  its  support.  The  lease  for  more  tlian 
one  year,  unless  made  in  the  manner  provided  by  the  statute,  cannot 
be  effectual  to  vest  the  term  in  the  lessee,  yet  in  other  respects  the. 
rights  of  the  parties  may  be  determined  by  its  terms,  so  far  as  they 
are  consistent  with  its  failure,  to  create  any  estate  or  interest  in  the 
land  or  any  duration  of  term  for  occupancy  by  the  lessee.  And  that 
principle  is  properly  applicable  to  such  leases.  Porter  v.  Bleiler,  17 
Barb.  154;  Reeder  v.  Sayre,  70  N.  Y.  184,  26  Am.  Rep.  567;  Laughran 
V.  Smith,  75  N.  Y.  205,  209. 

This  view  does  not  aid  the  defendants.  They  became  tenants  from 
year  to  year  as  from  the  time  of  their  entry ;  and  although  by  virtue 
of  the  terms  of  the  agreement,  in  tliat  respect,  in  the  lease,  they  may 
have  been  at  liberty  to  quit  on  the  first  of  August,  1886,  if  they  had 
remained  until  then,  such  time  in  that,  or  the  year  previous,  could  not 
be  treated  as  the  end  of  any  year  of  the  tenancy.  The  defendants 
having  entered  upon  the  second  year  from  the  time  of  the  original 
entry,  it  was  not  within  their  power  to  terminate  their  relation  or 
liability  as  tenants  until  the  end  of  the  then  current  year,  which  did 
not  terminate  until  the  first  of  March,  was  reached. 

The  conclusion,  from  these  views,  necessarily  follows  that  the  judg- 
ment should  be  affirmed.  All  concur,  except  Brown,  J.,  not  sitting. 
Judgment  affirmed.*^ 


CLAYTON  V.  BLAKEY. 

(Court  of  King's  Bench,  1798.     8  Term  Rep.  3.) 

This  was  an  action  against  a  tenant  for  double  rent,  for  holding  over 
after  the  expiration  of  his  term,  and  a  regular  notice  to  quit.  The 
first  count  of  the  declaration  stated  a  holding  under  a  certain  term, 
determinable  on  the  12th  of  May  then  past';  and  other  counts  stated 
a  holding  from  year  to  year,  determinable  at  the  same  period.  It 
appeared  in  evidence,  that  the  defendant  had  held  the  premises  for 
two  or  three  years,  under  a  parol  demise  for  twenty-one  years  from 
the  day  mentioned,  to  which  the  notice  to  quit  referred ;  and  the 
Statute  of  Frauds  directing  that  any  lease  for  more  than  three  years, 
not  reduced  into  writing,  shall  operate  only  as  a  tenancy  at  will,  it 
was  contended,  at  the  trial  of  the  last  assizes  for  Northumberland,  that 
the  holding  should  have  been  stated  according  to  the  legal  operation 
of  it,  as  a  tenancy  at  will ;  and  as  there  was  no  count  adapted  to  that 
statement,  that  the  plaintiff  ought  to  be  nonsuited.  Rooke,  J.,  how- 
ever, considering  that  it  amounted  to  a  tenancy  from  year  to  year, 
over-ruled  the  objection,  and  the  plaintiff  obtained  a  verdict. 

Wood  now  moved  to  set  aside  the  verdict,  on  the  ground  of  a  mis- 
direction, relying  upon  the  positive  words  of  the  stature 

42  See  Adams  v.  City  of  Cohoes,  127  N.  Y.  175,  28  N.  E.  25  (1891) ;  Larkin 
?.  Avery,  23  Conn.  304  (1S54). 


Ch.  5)  ESTATES  CREATED  665 

Lord  Kenyon,  C.  J.  The  direction  was  right;  for  such  a  holding 
now  operates  as  a  tenancy  from  year  to  year.  The  meaning  of  the 
statute  was,  that  such  an  agreement  should  not  operate  as  a  term ; 
but  what  was  then  considered  as  a  tenancy  at  will,  has  since  been 
properly  construed  to  enure  as  a  tenancy  from  year  to  year. 

Per  Curiam.    Rule  refused.*' 


GRISWOLD  V.  BRANFORD. 
(Supreme  Court  of  Errors  of  Connecticut,  190S.     80  Conn.  453,  68  Atl.  987.) 

Action  to  recover  rent,  brought  to  and  tried  by  the  Court  of  Common 
Pleas  in  New  Haven  County,  Bennett,  J.  Facts  found  and  judgment 
rendered  for  the  plaintiff  for  $420,  and  appeal  by  the  defendant.  No 
error. 

The  plaintiff  sought  to  recover  the  agreed  rent  of  certain  premises 
for  the  year  beginning  October  1st,  1899.  He  set  up  a  parol  lease  for 
that  term,  and  alleged  that  the  defendant  entered  into  possession  under 
it,  continued  in  possession  through  the  term,  and  had  paid  no  rent.  The 
defendant  pleaded  a  general  denial  and  the  statute  of  limitations. 

Prior  to  October  1st,  1897,  the  parties  entered  into  a  parol  agree- 
ment whereby  the  plaintiff  undertook  to  lease  and  the  defendant  to 
hire  the  premises  for  the  term  of  two  years  from  said  October  1st,  at 
an  annual  rental  of  $300  payable  annually  at  the  end  of  each  year.  The 
defendant  thereupon  went  into  occupation  on  said  day  and  continued 
in  such  occupation  throughout  tlie  two-year  period,  and  paid  the 
agreed  rent  at  the  end  of  each  year  as  stipulated.  Before  the  period 
had  expired  a  new  parol  agreement,  embodying  precisely  the  same 
terms  and  for  the  same  time  was  made,  and  the  defendant  continued 
its  possession  confessedly  until  January  1st,  1900,  and  as  the  plaintiff 
claims,  until  May,  1901.  The  premises  were  hired  and  used  for  the 
purposes  of  the  Town  Court.  On  December  31st,  1899,  the  selectmen 
gave  written  notices  to  the  plaintiff  and  the  officers  of  the  court  that 

4  3  "It  is  true  the  Revised  Statutes,  c.  60,  §  21,  declare  that  all  interests  or 
estates  in  lands,  created  without  any  instrument  in  writing,  shall  have  the 
force  and  effect  of  estates  at  will  only ;  yet  we  think  that  this  estate,  when 
once  created,  may,  like  any  other  estate  at  will,  by  subsequent  events,  be  chang- 
ed into  a  tenancy  from  year  to  year.  In  the  case  before  us  the  lessee  entered 
into  possession,  and  the  possession  was  continued  from  year  to  year,  until 
July,  1844,  and  the  rents  semi-annually  paid  by  the  lessee  and  accepted  by  the 
landlord.  From  these  facts  a  new  agreement  may  well  be  presumed,  and  the 
estate,  which  was  originally  created  by  the  statute  as  an  estate  only  at  will, 
expands  into  a  holding  from  year  to  year."  Barlow  v.  Wainwright,  22  Vt.  88, 
52  Am.  Dec.  79  (1849).     Ellis  v.  Paige,  1  Pick.  (Mass.)  43  (1822),  contra. 

See  Richardson  v.  Giffard,  1  A.  &  E.  52  (1834),  where  a  tenant  who  had  gone 
into  possession  under  an  agreement  for  a  lease  for  three  years  at  an  annual 
rent,  but  which  agreement  was  not  executed  as  required  by  the-  Statute  of 
Frauds,  was  held  liable  on  an  undertaking  in  such  agreement  to  keep  the  prem- 
ises in  repair. 


666  DERIVATIVE  TITLES  (Part  2 

on  and  after  January  1st,  1900,  its  sessions  would  be  held  in  the  town 
hall,  and  that,  as  was  the  fact,  suitable  accommodations  had  been  pro- 
vided there.  On  January  1st  the  defendant  removed  from  the  plain- 
tiff's building  substantially  all  of  its  furniture,  but  the  judge  of  the 
court  continued  to  hold  its  sessions  there  until  May  1st,  1901.  No  rent 
was  paid  after  October  1st,  1899.  The  action  was  begun  September 
28th,  1906.  Judgment  was  rendered  for  $300  as  the  rent  for  one  year 
from  October  1st,  1899,  with  interest  thereon  from  October  1st,  1900. 
Prkntice,  J.  Prior  to  October  1st,  1897,  these  parties  entered  into 
a  parol  agreement  whereby  the  plaintiff  undertook  to  lease  the  premises 
in  question  to  the  defendant  for  the  period  of  two  years  from  and  after 
said  October  1st,  for  an  annual  rent  of  $300  payable  at  the  end  of  each 
year.  The  defendant  thereupon,  on  said  date,  entered  into  possession 
of  the  premises  and  thereafter  remained  in  possession  thereof  until 
January  1st,  1900,  if  not  later.  The  amount  of  rent  in  said  parol  agree- 
ment stipulated  to  be  paid,  was  paid  as  agreed  for  each  of  the  two  years 
succeeding  October  1st,  1897.  Beyond  question,  therefore,  the  defend- 
ant became  a  tenant  from  year  to  year,  and  remained  such  tenant  down 
to  October  1st,  1899.  The  recited  facts  disclose  a  lease  not  actionable 
by  the  statute  of  frauds,  an  entry  into  possession  under  it,  and  the  pay- 
ment and  acceptance  of  the  stipulated  annual  rent,  thus  satisfying  even 
more  exacting  conditions  than  those  contended  for  by  the  defendant  as 
necessary  to  create  by  implication  of  law  a  tenancy  from  year  to  year, 
and  more  exacting  ones  than  our  law  requires.  Lockwood  v.  Lock- 
wood.  22  Conn.  425,  433;  Larkin  v.  Avery,  23  Conn.  304,  316;  Corbett 
v.  Cochrane,  67  Conn.  570,  577,  35  Atl.  509.  When,  therefore,  the 
defendant,  with  the  acquiescence  of  the  plaintiff,  remained  m  posses- 
sion after  October  1st,  1899,  as  it  confessedly  did,  a  tenancy  for  a  new 
year  commencing  on  that  date  was  created,  unless  a  new  and  different 
situation  arose  from  the  second  parol  agreement  and  the  conduct  of 
the  parties  under  it.  1  Washburn  on  Real  Property,  §  797;  4  Kent's 
Comm.  115;  1  Taylor  on  Landlord  &  Tenant,  §  55.  If  this  ineffective 
agreement  and  subsequent  conduct  was  barren  of  legal  results,  the  ac- 
countability of  the  defendant  to  the  plaintiff  for  the  amount  of  rent 
for  which  judgment  in  this  case  was  rendered,  and  for  that  amount 
covering  the  precise  period  described  in  the  complaint,  follows.  And 
judgment  for  that  amount  might,  under  those  conditions,  have  been 
rendered  upon  the  present  complaint,  although  it  avers  a  lease  by  parol 
for  one  year,  made  on  or  about  October  1st,  1899.  The  facts  do  not, 
indeed,  show  a  technical  lease  of  any  kind,  or  that  the  parol  lease  was 
one  for  the  expressed  period  of  one  year  from  that  date,  but  they  do 
disclose  a  tenancy  with  an  obligation  to  pay  an  agreed  rental  of  $300, 
and  that  the  tenancy  was  one  for  the  year  in  question,  all  as  the  result 
of  the  acts  of  the  parties.  Larkin  v.  Avery,  23  Conn.  304,  316.  Acts 
and  contracts  may  be  stated  according  to  their  legal  effect,  and  imma- 
terial variances  are  not  to  be  regarded.  Practice  Book,  1908,  p.  244, 
§  144;  page  245,  §  149. 


Ch.  5)  ESTATES   CREATED  667 

The  defendant  is  thus  placed  in  the  position  where,  as  one  of  the 
conditions  of  any  successful  defense  he  may  interpose,  he  must  estab- 
lish a  new  tenancy  beginning  October  1st,  1899.  Counsel  appear  to 
have  been  unmindful  of  the  full  significance  of  the  pre-existing  relation 
of  the  parties  as  bearing  upon  both  the  incidental  question  as  to  wheth- 
er the  defendant's  continued  possession  was  under  a  new  tenancy  suffi- 
ciently established,  or  under  a  mere  continuance  of  the  term  of  die  old 
one,  and  upon  the  ultimate  question  of  the  plaintiff's  right  to  recover 
the  $300  rental  for  which  judgment  was  obtained.  The  plaintiff's  coun- 
sel approaches  the  question  at  issue  as  though  the  parol  agreement  of 
1899  was  the  first  significant  fact  in  the  record,  and  upon  the  assump- 
tion that  the  possession  after  October,  1899,  was  so  clearly  referable 
to  it  that  there  would  be  attached  to  that  possession  the  same  impor- 
tance as  would  have  been  attached  to  an  original  entry.  The  defend- 
ant's counsel  likewise  looks  to  the  events  of  1899  as  determining  the 
relations  of  the  parties,  but  urges  that  there  is  a  distinction  not  to  be 
lost  sight  of  between  an  entry  and  a  continuance  in  possession  as  evi- 
dencing a  holding  under  a  tenancy  having  its  origin  in  an  agreement 
ineffective  in  itself. 

Approaching  the  question  at  issue  in  the  manner  thus  indicated,  the 
plaintiff  claims  that  the  defendant's  possession  after  October  1st,  1899, 
following  the  new  parol  agreement,  created  a  new  and  independent 
status.  This  status,  he  says,  was  that  of  a  tenancy  from  year  to  year. 
The  practical  result  of  this  claim  is  that  while  the  origin  of  the  tenancy 
after  October  1st,  1899,  is  found  in  the  events  of  that  year,  the  char- 
acter and  incidents  of  the  tenancy  are  precisely  the  same  as  would  have 
resulted  from  the  defendant's  occupancy  had  there  been  no  attempt  to 
make  a  renewal  lease.  The  defendant's  position  with  respect  to  the 
question  of  the  creation  of  a  new  tenancy  referable  to  the  new  agree- 
ment is  not  definitely  stated,  although  the  inference  to  be  drawn  from 
the  distinction  he  makes  between  a  continued  occupancy  and  a  new 
entry  would  seem  to  indicate  that  it  was  that  no  such  new  tenancy  came 
into  existence.  His  main  contention,  however,  is  that  whatever  new 
tenancy  may  have  been  created  by  the  events  of  1899,  it  was  one  at  will 
and  not  one  from  year  to  year. 

We  have  already  observed  that  a  successful  defense  involves  the 
establishment  by  the  defendant  of  two  propositions,  to  wit:  (1)  That 
the  defendant's  possession  after  October  1st,  1899,  was  under  a  new 
tenancy  of  some  sort,  and  (2)  that  this  tenancy  was,  to  say  the  least, 
not  one  from  year  to  year.  If  it  be  assumed,  as  the  plaintiff  claims 
and  the  defense  requires,  that  a  new  and  independent  tenancy  origi- 
nated in  the  events  of  1899,  the  question  remains  as  to  its  character. 
The  defendant  urges  that  it  was  one  at  will,  since  no  rent  was  paid  for 
any  occupancy  or  period  after  October  1st,  1899.  His  contention  is 
that  the  payment  of  rent  must  concur  with  possession  by  the  lessee  un- 
der a  term  lease  in  violation  of  the  statute  of  frauds,  in  order  that  a 
tenancy  from  year  to  year  be  created  by  implication  of  law,  and  that 


668  DERIVATIVE  TITLES  (Part  2 

without  such  payment  the  tenancy  will  be  regarded  as  one  at  will. 
Whatever  the  rule  may  be  elsewhere,  such  is  not  the  law  of  this  juris- 
diction. Tenancies  from  year  to  year  by  implication  are  the  results 
of  judicial  legislation  as  a  measure  of  equity  and  sound  policy.  1 
Washburn  on  Real  Property,  §  797.  In  this  State  the  long-established 
rule  is  that  when  parties  make  an  oral  lease  of  lands  reserving  rent, 
which  lease  is  non-actionable  by  reason  of  the  statute  of  frauds,  and 
the  lessee  thereafter  enters  into  possession  under  the  lease,  there  re- 
sults a  tenancy  which  under  ordinary  conditions  at  least  will  by  im- 
plication of  law  be  regarded  as  one  from  year  to  year.  Larkin  v.  Av- 
ery, 23  Conn.  304 ;  Corbett  v.  Cochrane,  67  Conn.  570,  35  Atl.  509. 

This  rule  has  an  especial  appropriateness  in  this  State  where  parol 
leases  for  a  term  not  exceeding  one  year  under  which  possession  is 
taken  are  not  invalid  by  our  statute  of  frauds.  The  same  result  would 
of  course  logically  follow,  where  the  lessee  remained  in  a  possession 
previously  acquired,  if  the  circumstances  were  such  as  to  sufficiently 
disclose  that  his  continued  possession  was  referable  to  the  ineffective 
lease,  and  therefore  under  it,  as  an  agreement  made,  although  not  en- 
forceable in  and  of  itself.  Andrew  v.  Babcock,  63  Conn.  109,  121,  26 
Atl.  715.  Section  4043  of  the  General  Statutes  1902  first  enacted,  in 
substance,  in  1866,  prescribes  that  a  holding-over  possession,  standing 
by  itself,  shall  not  be  regarded  as  evidence  of  any  agreement  of  a  further 
lease.  It  does  not,  however,  prevent  a  tenancy  from  being  established 
by  other  recognized  means.  One  of  these  means,  recognized  long  be- 
fore the  legislation  of  1866,  was  that  of  supplementing  proof  of  the 
agreement  non-enforceable  under  the  statute  of  frauds,  with  proof  of 
the  acts  of  the  parties  disclosing  a  recognition  by  them  of  a  tenancy 
in  fact  under  it.  1  Swift's  Digest,  s.  p.  91 ;  Lockwood  v.  Lockwood,  22 
Conn.  425 ;  Larkin  v.  Avery,  23  Conn.  304.  The  only  significance 
which  can  reasonably  attach  to  a  mere  payment  and  receipt  of  rent, 
is  to  be  found  in  a  recognition  of  a  tenancy  of  some  sort  under  the  in- 
valid lease,  and  our  own  courts  have  well  said  that,  however  satisfac- 
tory such  a  recognition  might  be,  there  might  well  be  one  sufficiently 
disclosed  in  other  ways.  In  some  jurisdictions,  rent  payments  of  an- 
nual sums  or  aliquot  parts  thereof  have  been,  by  reason  of  their  indica- 
tion of  the  intention  of  the  parties,  regarded  as  essential  to  the  conver- 
sion of  what  by  force  of  statute  or  judicial  construction  are  prima 
facie  tenancies  at  will  into  tenancies  from  year  to  year.  Such  is  not 
the  law  of  this  State. 

The  defendant  having,  for  the  reasons  stated,  failed  in  his  contention 
that  the  tenancy  after  October  1st,  1899,  was  other  than  one  from  year 
to  year,  the  judgment  appealed  from  was  properly  rendered. 

Upon  our  conclusions  the  defense  that  the  statute  of  Hmitations  had 
run  against  the  plaintiff's  claim  is  confessedly  not  well  made. 

There  is  no  error.    In  this  opinion  the  other  judges  concurred. 


Ch.  5)  ESTATES  CREATED  669 

LYONS  V.  PHILADELPHIA  &  R.  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1904.     209  Pa.  550,  5S  Atl.  924.) 

Appeal  from  report  of  viewers. 

From  the  record  it  appeared  that  plaintiffs  who  were  liquor  dealers, 
entered  into  a  verbal  undertaking  with  Rieker,  the  then  owner,  the 
terms  of  which  were  that  they  agreed  to  pay  twenty-five  cents  for  each 
barrel  of  beer  more  than  the  regular  price  elsewhere,  as  rental.  The 
rental  was  "payable  just  as  the  beer  bill  was  payable — paid  at  all  times, 

*  *  *  along  different  periods, — running  account,  *  *  *  some- 
times every  week  they  got  a  check.''  The  understanding  was  that  the 
plaintiffs  "had  a  right  to  remain  on  that  lot  as  long  as  you  [they]  want- 
ed," or,  as  the  owner's  son  testifies,  they  "could  have  stayed  as  long  as 
they  felt." 

The  tenants  erected  buildings  on  the  premises  which  were  used  for 
bottling,  storage,  liquor-room  and  offices, — and  also  a  stable,  wagon 
shed,  coal  shed  and  outbuildings  and  machinery  necessary  to  the  con- 
duct of  their  business. 

The  defendant  company  being  desirous  to  enter  upon  the  lands  for 
railroad  uses,  presented  a  bond  in  the  usual  form,  which  was  approved 
May  16,  1901,  and  thereafter  viewers  were  appointed  for  the  purposes 
stated. 

The  defendant  gave  notice  to  the  plaintiffs  December  20,  1901,  that 
it  desired  possession  of  the  lot  March  1,  1902,  and  stated  the  notice  was 
given  to  allow  them  time  to  arrange  their  affairs,  but  did  not  take  actual 
possession  of  the  premises  until  June  4,  1902. 

The  plaintiffs  disregarded  the  notice,  and  the  railroad  company  pro- 
ceeded to  the  demolition  of  the  buildings.  The  court  gave  binding  in- 
structions for  defendant. 

Per  Curiam.  The  appellants  were  tenants  at  will  of  Rieker.  The 
agreement  under  which  they  went  into  possession  was  altogether  indefi- 
nite as  to  the  time  it  was  to  last ;  they  were  to  "remain  as  long  as  they 
wanted."  The  rent  was  not  fixed  either  as  to  amount  or  time  of  pay- 
ment, but  was  deterrnined  by  the  number  of  barrels  of  beer  they  should 
purchase  from  their  lessor,  and  was  payable  "just  as  the  beer  bill  was 
payable."  A  clearer  case  of  tenancy  at  will  would  be  hard  to  discover. 
Under  such  circumstances  the  mere  fact  that  the  tenancy  ran  along  for 
more  than  a  year  did  not  change  its  character  or  convert  it  into  a  tenancy 
from  year  to  year.    "Where  the  duration  of  the  term  is  left  uncertain 

*  *  *  the  lessee  holds  ab  initio  as  a  tenant  at  will.  And  the  mere 
payment  of  rent  will  not  change  the  tenancy  into  one  from  year  to  year, 
unless  there  are  other  circumstances  to  show  an  intention  to  do  so,  as 
for  instance  an  agreement  to  pay  rent  by  the  quarter,  or  some  other 
ahquot  part  of  the  year :"  18  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  tit 
Landlord  &  Tenant,  p.  183.  But  "the  mere  payment  of  a  periodical 
rent,  however,  will  not  necessarily  have  the  effect  of  changing  the  ten- 


670  DERIVATIVE  TITLES  (Part  2 

ancy  at  will  into  a  periodical  tenancy  and  parol  evidence  may  be  ad- 
mitted for  the  purpose  of  showing  the  character  of  the  payment:"  18 
Am,  &  Eng.  Ency.  of  Law  (2d  Ed.),  p.  186.  It  was  on  this  last  prin- 
ciple that  the  issues  in  McDowell  v.  Simpson,  3  Watts,  129,  27  Am. 
Dec.  338,  and  Dunn  v.  Rothermel,  112  Pa.  272,  3  Atl.  800,  were  sent 
to  the  jury  to  determine  whether  the  leases  were  at  will  or  from  year 
to  year.  In  both  cases  the  rent  was  paid  yearly,  and  the  expression  of 
Justice  Kennedy,  in  the  former,  so  much  relied  on  by  appellants,  that 
"if  the  tenants  were  suffered  to  hold  under  it  for  upwards  of  a  year, 
paying  the  rent  as  it  became  due,  and  the  plaintiff  receiving  it  without 
objection,  the  lease  instead  of  continuing  to  be  a  lease  strictly  at  will 
would  thereby  become  a  lease  from  year  to  year,"  must  be  read  in 
connection  with  the  facts  of  the  case. 

Being  tenants  at  will,  the  termination  of  the  lessor's  estate,  even 
though  by  involuntary  alienation  under  eminent  domain  determined 
the  appellants'  lease,  and  made  them  technically  tenants  at  sufferance 
of  the  railroad  company.  The  difference,  however,  is  not  practically  of 
any  importance.  All  they  were  entitled  to  in  either  case  was  notice 
and  a  reasonable  time  to  remove  their  goods  and  fixtures.  This  they 
received,  but  failed  to  avail  themselves  of,  and  the  learned  judge  below 
was  justified  in  treating  their  conduct  as  an  abandonment. 

The  filing  of  the  bond  by  the  railroad  company  did  not  change  the 
nature  of  the  tenancy,  nor  the  rights  of  the  appellants  except  so  far  as 
it  substituted  the  company  as  lessor  in  place  of  Rieker.  The  bond  was 
security  for  such  damages  as  the  appellants  "shall  be  entitled  to  receive 
for  the  entering  by  the  said  company  upon  the  said  lands,  and  establish- 
ing and  constructing  the  said  additional  tracks  and  structures  thereon." 
If  the  company  had  entered  immediately  and  demolished  the  buildings 
in  the  construction  of  its  tracks,  it  would  have  been  liable  just  as  its 
predecessor,  Rieker,  would  have  been,  for  the  damages  caused  by  want 
of  reasonable  opportunity  to  appellants  to  remove  their  property,  but 
such  opportunity  having  been  given,  there  were  no  damages,  and  the 
verdict  was  rightly  directed  for  defendant. 

Judgment  affirmed.** 


RIGHT  d.  FLOWER  v.  DARBY  et  al. 

(Court  of  King's  Bench,  17S6.     1  Term  Rep.  159.) 

Ejectment  tried  at  the  last  assizes  at  Salisbury,  before  Plotham, 
Baron,  when  a  verdict  was  found  for  the  plaintiff,  subject  to  the  opin- 
ion of  the  Court  of  King's  Bench  on  the  following  case: 

That  the  lessor  of  the  plaintiff  was  seised  in  fee  of  the  premises 
in  question.  That  on  the  11th  day  of  May,  1781,  the  defendant  Darby 
took  the  premises,  which  are  a  house  in  Salisbury,  and  occupied  them 

4  4  See  Doe  d.  Tomes  v.  Chamberlain,  5  M.  &  W.  14  (1839) ;  Sheldon  v.  Davey, 
42  Vt.  G37  (1870),  ace. 


Ch.  5)  ESTATES   CREATED  671 

as  a  public-house  from  that  time  under  a  parol  demise  at  £10.  per  an- 
num;  the  rent  to  commence  from  Midsummer  then  next  following. 
The  defendant  Darby  let  part  of  the  premises  to  the  defendant  Bris- 
tow.  That  on  the  26th  March,  1785,  the  defendant  Darby  was  served 
with  a  notice  to  quit  on  the  29th  of  September  following. 

The  question  is,  whether  the  lessor  of  the  plaintiff  is  entitled  to  re- 
cover ? 

Lord  Mansfield,  C.  J.  When  a  lease  is  determinable  on  a  certain 
event,  or  at  a  particular  period,  no  notice  to  quit  is  necessary,  because 
both  parties  are  equally  apprized  of  the  determination  of  the  term. 

If  there  be  a  lease  for  a  year,  and  by  consent  of  both  parties  the 
tenant  continue  in  possession  afterwards,  the  law  implies  a  tacit  ren- 
ovation of  the  contract.  They  are  supposed  to  have  renewed  the  old 
agreement,  which  was  to  hold  for  a  year.  But  then  it  is  necessary 
for  the  sake  of  convenience,  that,  if  either  party  should  be  inclined 
to  change  his  mind,  he  should  give  the  other  half  a 'year's  notice  before 
the  expiration  of  the  next  or  any  following  year:  now  this  is  a  notice 
to  quit  in  the  middle  of  the  year,  and  therefore  not  binding,  as  it  is 
contrary  to  the  agreement. 

As  to  the  case  of  lodgings,  that  depends  on  a  particular  contract, 
and  is  an  exception  to  the  general  rule.  The  agreement  between  the 
parties  may  be  for  a  month  or  less  time,  and  there  to  be  sure  much 
shorter  notice  would  be  sufficient,  where  the  tenant  has  held  over  the 
time  agreed  upon,  than  in  the  other  case.  The  whole  question  depends 
upon  the  nature  of  the  first  contract. 

AsHHURST,  J.  There  is  no  distinction  in  reason  between  houses  and 
lands,  as  to  the  time  of  giving  notice  to  quit.  It  is  necessary  that  both 
should  be  governed  by  one  rule.  There  may  be  cases,  where  the  same 
hardship  would  be  felt  in  determining  that  the  rule  did  not  extend 
to  houses  as  well  as  lands ;  as  in  the  case  of  a  lodging-house  in  Lon- 
don, being  let  to  a  tenant  at  Lady-Day  to  hold  as  in  the  present  case: 
if  the  landlord  should  give  notice  to  quit  at  Michaelmas,  he  would  by 
that  means  deprive  the  lessee  of  the  most  beneficial  part  of  the  term, 
since  it  is  notorious  that  the  winter  is  by  far  the  most  profitable  sea- 
son of  the  year  for  those  who  let  lodgings. 

BuLLER,  J.  It  is  taken  for  granted  by  the  counsel  for  the  plaintiff, 
that  the  rule  of  law,  which  construes  what  was  formerly  a  tenancy  at 
will  of  lands  into  a  tenancy  from  year  to  year,  does  not  apply  to  the 
case  of  houses,  but  there  is  no  ground  for  that  distinction.  The  rea- 
son of  it  is,  that  the  agreement  is  a  letting  for  a  year  at  an  annual  rent ; 
then  if  the  parties  consent  to  go  on  after  that  time,  it  is  a  letting  from 
year  to  year.  This  reason  extends  equally  to  the  present  case ;  an  an- 
nual rent  is  here  reserved ;  and  upon  such  a  holding  it  has  been  de- 
termined that  half  a  year's  notice  to  quit  is  necessary.  This  doc- 
trine was  laid  down  as  early  as  in  the  reign  of  Henry  the  Eighth. 
[13  H.  VIII,  15  b.]  The  rhoment  the  year  began,  the  defendant 
had  a  right  to  hold  to  the  end  of  that  year;    therefore  there  should 


672  DERIVATIVE  TITLES  (Part  2 

have  been  half  a  year's  notice  to  quit  before  the  end  of  the  term.  This 
gives  rise  to  another  objection  in  this  case,  upon  the  distinction  between 
six  months  and  half  a  year.  The  case  in  the  Year-Books  requires  half 
a  year's  notice;  but  here  there  is  less  than  half  a  year's  notice,  and 
therefore  it  is  bad  on  that  ground  also. 
Judgment  for  the  defendant. 


HERTER  V.  MULLEN. 

{Court  of  Appeals  of  New  York,  1899.    159  N.  Y.  28,  53  N.  E.  700,  44  L.  B.  A. 
703,  70  Am.  St,  Rep.  517.) 

Martin,  J.  This  action  was  to  recover  seven  months'  rent  of  a 
dwelling  house  situated  upon  Madison  avenue,  in  the  city  of  New 
York.  There  was  a  lease  between  the  parties,  by  which  the  defend- 
ants rented  the  premises  from  May  1,  1894,  for  the  period  of  one  year, 
the  rent  payable  in  monthly  installments  in  advance.  The  rent  for  that 
term  has  been  paid.  By  this  action  the  plaintiff  seeks  to  recover  rent 
for  a  portion  of  the  succeeding  year,  on  the  ground  that  the  defend- 
ants held  over  after  the  expiration  of  their  term,  and  thus  became 
liable  for  the  rent  of  the  premises  for  that  time.  The  facts  are  undis- 
puted. The  defendants  alleged  as  a  defense  to  the  action  the  making 
of  the  contract  or  lease  with  the  plaintiff;  that  in  the  month  of  Feb- 
ruary, 1895,  before  the  expiration  of  their  term,  they  notified  the 
plaintiff  that  they  would  not  retain  the  premises  for  another  year, 
and  that  after  such  notice  the  plaintiff  and  his  agents  were  permitted 
to  show  the  premises,  and  to  place  the  usual  notice  "To  Let"  upon 
them,  which  remained  during  the  balance  of  the  term. 

The  defendants  then  specially  alleged  that  on  May  1,  1895,  the  de- 
fendants were  prevented  from  yielding  up  the  possession  of  the  prem- 
ises by  the  act  of  God  in  afflicting  their  mother,  who  was  a  member 
of  their  family,  with  a  disease  which,  at  that  time,  previously,  and 
subsequently,  including  May  15th,  confined  her  to  her  bed  so  that 
it  would  have  endangered  her  life  to  take  her  from  the  house;  that 
for  that  reason,  and  no  other,  of  which  the  plaintiff  had  full  knowledge 
and  notice,  the  defendants  were  obliged  to  and  did  occupy  a  small 
portion  of  the  premises  until  May  15th;  that  all  their  property,' furni- 
ture, and  belongings  and  their  family  were  removed  from  the  premises, 
and  every  part  thereof,  on  May  1,  1895,  except  from  the  sick  room  in 
which  their  mother  was  confined,  and  that  they  were  forbidden  by  the 
physician  in  charge  to  remove  her  until  May  15th,  when  she  was  at 
once  removed. 

Upon  the  trial  it  was  admitted  that  upon  the  1st  of  February,  1895, 
the  defendants  notified  the  plaintiff  that  on  the  1st  of  May  they  would 
give  up  and  surrender  the  possession  of  the  premises.  That  they  were 
occupied  under  the  lease  was  admitted,  also  the  rate  of  rent,  and  the 
fact  that  the  defendants,  from  necessity,  held  over  after  the  expira- 


Ch.  5)  ESTATES  CREATED  673 

tion  of  the  lease  some  15  days.  The  plaintiff  then  admitted  the  facts 
set  up  in  the  answer  as  to  the  impossibility  of  the  defendants'  sur- 
rendering possession  at  the  expiration  of  the  year,  so  that  the  question 
presented  is  whether,  notwithstanding  the  facts  alleged  in  the  answer, 
the  plaintiff  was  entitled,  as  a  matter  of  law,  to  recover  rent  for  the 
succeeding  year,  upon  the  ground  that  the  defendants  held  over  after 
the  expiration  of  their  term.    • 

The  admission  of  the  plaintiff  amounts  to  a  concession  that,  by  rea-. 
son  of  the  sickness  of  the  defendants'  mother,  it  was  impossible  for 
them  to  surrender  up  the  possession  of  the  premises  to  the  plaintiff; 
that,  so  far  as  it  was  possible,  they  did  so;  and  hence,  that  their 
retention  was  wholly  involuntary.  If  there  was  any  doubt  as  to  the 
question  of  impossibility,  it  should  have  been  submitted  to  the  jury, 
and  the  defendants'  exception  to  the  direction  of  a  verdict  was  well 
taken.  Thus,  in  a  word,  the  question  is  whether  that  impossibility  jus- 
tified the  defendants'  action,  or  whether,  although  it  was  impossible  to 
surrender  the  entire  premises,  the  holding  of  a  small  part  for  a  few 
days  imposed  upon  them  a  liability  for  rent  for  the  succeeding  year. 
It  is  well  settled  that,  where  a  tenant  voluntarily  holds  over  after  the 
expiration  of  his  term,  he  may  be  held  as  upon  an  agreement  to  hold 
for  a  year  upon  the  terms  of  the  prior  lease.  Conway  v.  Starkweather, 
1  Denio,  114;  Board  v.  Clark,  33  N.  Y.  251;  Haynes  v.  Aldrich,  133 
N.  Y.  287,  289,  31  N.  E.  94,  28  Am.  St.  Rep.  636.  The  basis  of  this  lia- 
bility is  often  said  to  be  an  implied  agreement  upon  the  part  of  the 
tenant  to  hold  for  another  year.  While  I  doubt,  as  I  always  have, 
the  propriety  of  calling,  this  class  of  obligations  implied  contracts,  but 
think  they  are  to  be  regarded  as  duties  which  the  law  im- 
poses, yet,  whether  they  be  denominated  implied  contracts  or  du- 
ties created  by  law,  in  either  case  the  right  arises  upon'  an  impli- 
cation of  law,  and  in  no  sense  upon  an  express  or  absolute  contract. 

It  is  also  well  settled  that,  where  a  duty  or  charge  is  created  by  law, 
and  the  performance  is  prevented  by  inequitable  accident  or  the  act 
of  God,  without  fault  of  the  party  sought  to  be  charged,  he  will  be 
excused,  but  where  a  person  absolutely,  and  by  express  contract, 
binds  himself  to  do  a  particular  thing,  which  is  not  at  the  time  impos- 
sible or  unlawful,  he  will  not  be  excused,  unless  through  the  fault 
of  the  other  party.  The  reason  given  for  the  latter  portion  of  this 
rule  is  that  he  might  have  provided  by  his  contract  against  inevita- 
ble accident  or  the  act  of  God.  Harmony  v.  Bingham,  12  N.  Y.  99, 
62  Am.  Dec.  142 ;  Tompkins  v.  Dudley,  25  N.  Y.  272,  82  Am.  Dec. 
349;  Dexter  v.  Norton,  47  N.  Y.  62,  7  Am.  Rep.  415.  Thus  the 
most  that  can  be  said  of  the  obligation  that  arises  from  the  relation 
of  landlord  and  tenant  and  follows  by  a  general  lease  is  that  the 
tenant  is  charged  with  the  duty  of  vacating  the  premises  at  the 
end  of  his  term.  If  he  fails,  it  is  a  breach  of  his  duty,  and  or- 
dinarily the  law  implies  or  creates  a  liability  on  his  part  for  an- 
Aig.Pbop, — 13 


574  DERIVATIVE  TITLES  (Part  2 

other  year's  rent.  This  being  a  duty  impUed  or  created  by  law,  and 
not  by  an  express  or  absolute  agreement,  it  falls  within  the  first  part 
of  the  foregoing  rule,  and  hence  it  is  obvious  that,  if  the  tenant's  re- 
moval was  rendered  impossible  by  inevitable  accident  or  the  act  of 
God,  he  is  excused  for  his  omission  to  surrender  the  premises,  at  least 
so  far  as  it  creates  a  liability  for  a  year's  rent  which  is  implied  by 
law.  The  reason  for  the  distinction  between  the  effect  of  impossibility 
.  of  performance,  occasioned  by  inevitable  accident  or  the  act  of  God, 
upon  an  obligation  created  by  express  contract  and  upon  an  obligation 
which  the  law  implies,  has  been  held  to  rest  "upon  the  unwillingness 
of  the  law  to  at  once  create,  impose,  and  exact  the  performance  of 
an  obligation  forbidden  or  rendered  impracticable  by  the  interposition 
of  Providence."  School  Dist.  v.  Dauchy,  25  Conn.  530,  68  Am.  Dec. 
371. 

Under  the  principle  of  the  authorities  relating  to  this  subject,  I 
think  it  is  clear  that,  as  the  obHgation  sought  to  be  enforced  was 
one  created  by  law,  and  not  by  the  agreement  of  the  parties,  impos- 
sibility of  performance  was  a  valid  excuse,  and  the  defendants  cannot 
be  held  for  the  rent  for  the  subsequent  year.  Moreover,  the  same 
result  may  be  reached  upon  another  ground.  There  are  many  cases 
where  the  courts  have  impHed  a  condition  in  a  contract  to  the  effect 
that  a  party  is  relieved  from  its  terms  where  its  performance  has, 
without  his  fault,  become  impossible.  The  principle  upon  which  those 
cases  are  based  is  that,  when  the  contract  was  made,  the  parties  con- 
templated that  the  condition  which  subsequently  existed  might  arise, 
and  render  performance  impossible,  and  that  the  implied  condition  is 
to  be  construed  as  a  part  of  the  existing  contract,  and  thus  relieves 
the  party  from  liability  in  case  that  condition  arises.  Dexter  v.  Nor- 
ton, 47  N.  Y.  62,  7  Am.  Rep.  415;  Lorillard  v.  Clyde,  142  N.  Y.  456, 
462,  Z7  N.  E.  489,  24  L.  R.  A.  113;  Stewart  v.  Stone,  127  N.  Y. 
507,  28  N.  E.  595,  14  L.  R.  A.  215;  Spalding  v.  Rosa,  71  N.  Y.  40, 
44,  27  Am.  Rep.  7;  Taylor  v.  Caldwell,  3  Best.  &  S.  826;  Robinson 
V.  Davison,  L.  R.  6  Exch.  269;  Kein  v.  Tupper,  52  N.  Y.  550,  555; 
Dolan  V.  Rodgers,  149  N.  Y.  489,  492,'  44  N.  E.  167. 

To  hold  in  this  case  that  this  agreement  was  made  upon  an  implied 
condition  that  the  defendants  should  not  be  required  to  vacate  the 
premises  at  the  expiration  of  their  term  in  the  event  that  it  was  ren- 
dered impossible  by  inevitable  accident  or  the  act  of  God  is  quite  with- 
in the  principle  of  the  authorities  cited.  But,  be  this  as  it  may,  it 
is  manifest  that  the  charge  or  liability  which  the  plaintiff'  seeks  to  en- 
force was  created  by  law,  and  not  by  agreement,  and  that,  as  its  per- 
formance was  prevented  without  the  defendants'  fault,  they  were  ex- 
cused from  the  onerous  liability  which  the  plaintiff  now  seeks  to 
enforce.  It  may  well  be,  and  doubtless  is,  true  that  the  plaintiff 
may  recover  for  the  time  the  premises  were  occupied  by  the  defend- 
ants, or  if,  by  reason  of  their  failure  to  surrender  up  the  premises, 
additional  damages  follow,  that  they  may  be  recovered  in  a  proper  ac- 


Ch.  5)  ESTATES  CREATED  675 

tion  so  that  all  damages  caused  by  the  defendants*  misfortune  would 
be  borne  by  them,  but  that  he  cannot  recover  the  rent  for  the  subsequent 
year  upon  the  implied  contract  or  duty  imposed  by  law  seems  to  me 
clear. 

These  considerations  lead  me  to  the  conclusion  that  the  judgment  in 
this  action  should  be  reversed,  and  a  new  trial  ordered,  widi  costs 
to  abide  the  event. "'^ 


GOLDSBOROUGH  v.  GABLE. 
(Supreme  Court  of  Illinois,  1S92.     140  111.  2C9,  29  N.  E.  722,  15  L.  R.  A.  204.) 

ScHOLriELD,  J.  Appellant  brought  covenant  against  appellee  for 
rent.  Upon  the  trial  in  the  circuit  court,  appellant  read  in  evidence 
a  deed,  executed  by  himself  to  appellee,  leasing  certain  real  estate  in 
Peoria  from  March  18,  1883,  until  March  18,  1884,  for  $840,  payable 
in  installments  of  $70  on  the  18th  day  of  each  month;  occupation 
of  the  premises,  after  the  execution  of  the  deed,  by  appellee  until 
the  ISth  of  October,  1888 ;  the  payment  of  the  stipulated  rent  for  the 
term  described  in  the  deed;  the  failure  of  appellee  to  surrender 
possession  of  the  premises  at  the  expiration  of  the  term,  and  his  con- 
tinued occupancy  thereof ;  payment  of  the  same  rent  for  the  first 
month  after  the  expiration  of  the  term,  as  provided  by  the  deed  to 
be  paid  by  the  month  during  the  term ;  and  the  payment  of  other  sums 
for  rent  from  time  to  time  throughout  the  period  that  appellee  oc- 
cupied the  premises ;  amounting,  however,  in  -the  aggregate,  to  a  less 
sum  than  the  total  amount  of  rent  due  at  the  rate  provided  to  be  paid 
by  the  deed. 

Appellee  was  permitted  to  introduce  evidence,  over  the  objection  ol 
appellant,  tending  to  prove  that,  after  the  expiration  of  the  term  de- 
scribed in  the  deed,  and  after  he  had  paid  appellant  one  month's  rent 
for  the  occupation  of  the  premises  at  the  rate  provided  to  be  paid  in 
the  deed,  namely,  on  the  28th  of  May,  1884,  he  commenced  negotiating 
with  appellant  to  reduce  the  rent  for  the  premises;  that  the  negotia- 
tion was  protracted  until  the  9th  of  July  following,  when  it  was 
agreed  between  appellant  and  appellee  that  the  rent  for  the  prem- 
ises should  be  reduced  to  $50  in  lieu  of  $70  per  month,  as  it  had  been 
theretofore;  and  the  court  refused  to  instruct  the  jury,  at  the  instance 
of  the  appellant,  that,  even  if  they  believed  such  agreement  had  been 
proved,  it  was  "invalid,  and  could  not  be  enforced,"  but,  on  the  con- 
trary, the  court  instructed  the  jury  that,  if  they  believed  from  the 
evidence  that  such  agreement  had  been  proved,  it  was  valid,  and  the 

4  5  The  concurring  opinion  by  O'Brien,  J.,  and  the  dissenting  opinion  by  Gray, 
J.,  are  omitted.  Parker,  C.  J.,  and  Haight,  J.,  concurred  with  O'Brien  and 
Martin,  JJ.,  in  voting  for  reversal.  Bartlett  and  Vann,  JJ.,  concurred  with 
Gray,  J. 

See  Doe  v.  Crago,  6  C.  B.  90  (1S4S) ;  Oakley  v.  Monck,  3  H.  &  a  706  (1S65) ; 
Dougal  V,  McCarthy,  [1S93]  1  Q.  B.  736. 


676  DERIVATIVE  TITLES  (Part  2 

plaintiff  was  thereafter  entitled  to  recover  only  $50  per  month  for  the 
rent  of  the  premises. 

In  our  opinion,  the  court  erred  in  these  several  rulings.  There  was 
no  evidence  given  on  behalf  of  appellee  tending  to  prove  that  he  had 
surrendered  the  premises  to  appellant  before  the  making  of  the  agree- 
rhent  of  July  9,  1884,  or  that  he  had  offered  to  do  so,  and  refused  to 
execute  the  terms  of  the  lease,  or  that  there  was  any  reason  why  he 
could  then  have  surrendered  the  premises  and  refused  to  execute  the 
terms  of  the  deed.  Appellee  having  remained  in  possession  after  the 
expiration  of  the  term  described  in  the  deed,  without  any  new  contract 
with  appellant  in  respect  thereto,  it  was  optional  with  appellant  to 
treat  him  as  a  trespasser,  or  to  waive  the  wrong  of  holding  over,  and 
treat  him  as  a  tenant;  and,  by  accepting  the  payment  of  the  month's 
rent  thereafter  from  appellee,  appellant  made  his  election,  and  appel- 
lee then  became  a  tenant  of  the  premises  under  appellant,  from  year 
to  year,  upon  the  same  terms  and  subject  to  the  same  rent,  etc.,  as 
is  provided  to  be  paid  in  the  original  deed.  Prickett  v.  Ritter,  16 
111.  96;  Hunt  v.  Morton,  18  111.  75;  McKinney  v.  Peck,  28  111.  174; 
Cloth  Co.  V.  Gardner,  99  111.  151;  Webster  v.  Nichols,  104  111.  160. 

The  only  respect  wherein  the  agreement  of  the  9th  of  July,  1884, 
whereof  evidence  was  permitted  to  be  given  to  the  jury,  purported 
to  change  this  tenancy  from  year  to  year,  is  in  the  amount  of  the 
monthly  payment  of  rent  to  be  made.  Appellee,  by  that  agreement, 
is  required  to  do  nothing  which  he  was  not  already  obligated  to  do  as 
tenant  from  year  to  year,  and  appellant's  duties  are  in  no  wise  less- 
ened or  changed  thereby.  It  simply  purports  to  obligate  appellee  to 
pay  and  appellant  to  receive  $50,  where  they  were  already  obligated, 
the  one  to  pay  and  the  other  to  receive  $70.  There  is  thereby  neither 
in  fact  nor  in  presumption  of  law  injury  or  loss  to  appellee,  or  gain  or 
benefit  to  appellant.  It  follows  that  it  is  an  agreement,  as  clearly  as 
one  can  be,  without  any  consideration  to  support  it, — a  mere  nudum 
pactum ;  and  so  it  is  binding  upon  neither  of  the  parties,  and  is  in- 
susceptible of  being  enforced  in  this  suit.  Titsworth  v.  Hyde,  54  111. 
386;  Seybolt  v.  Railroad  Co.,  95  N.  Y.  562,  47  Am.  Rep.  75;  Daven- 
port V.  Society,  33  Wis.  387 ;  Johnson's  Adm'r  v.  Sellers,  33  Ala.  265 ; 
Gordon  v.  Gordon,  56  N.  H.  170.  See,  also,  3  Amer.  &  Eng.  Enc. 
Law,  390,  391,  and  notes. 

It  is  impossible  to  say  that  the  agreement  was  made  as  an  adjust- 
ment of  a  dispute  in  regard  to  a  doubtful  right,  for  appellee's  own  tes- 
timony shows  that  there  was  no  fact  in  dispute  between  him  and  ap- 
pellant. His  testimony  is  only  that  he  claimed  that  the  rent  should 
be  reduced,  and  that  appellant  resisted  the  claim  at  first,  but  finally 
yielded  to  the  extent  shown  by  the  agreement.  It  cannot  be  held  that 
appellant  is  in  any  way  estopped  by  the  agreement,  since  it  is  nof 
shown  that  appellee  has  in  consequence  of  it,  done  that  which  he  would 
otherwise  not  have  done,  whereby  he  will  be  injured  if  the  agreement 
be  not  carried  out ;  nor  can  it  be  held  that  the  agreement  has  the  effect 


Ch.  5)  .       ESTATES  CREATED  677 

of  an  executed  gift  as  to  the  difference  between  the  $50  and  the  $70 
per  month,  because  there  was  executed  no  receipt  or  release  for  the 
amount,  and  there  was  no  proof  of  any  action  of  the  parties  equiv- 
alent thereto. 

The  judgments  of  the  appellate  and  circuit  courts  are  reversed, 
and  the  cause  is  remanded  to  the  circuit  court  for  a  new  trial. 


KING  V.  DURKEE-ATWOOD  CO. 

(Supreme  Court  of  Minnesota,  1914.     126  Minn.  452,  148  N.  W.  207,  L.  R.  A. 

1915A,  235.) 

BuNN,  J.  Defendant  was  a  tenant  of  plaintiff  under  a  lease  from 
month  to  month,  the  leased  premises  being  a  store  in  Minneapolis  and 
a  flat  above  it.  The  rent  was  payable  monthly  in  advance.  April  4, 
1913,  defendant  caused  to  be  served  on  plaintiff  a  notice  of  the  termi- 
nation of  the  tenancy  of  May  31st.  Defendant  did  not,  however,  va- 
cate the  premises  on  the  date  named,  but  continued  in  possession  until 
June  30th,  when  it  ceased  to  occupy  the  premises  for  any  purpose,  and 
delivered  the  keys  to  plaintiff.  The  holding  over  was  with  the  knowl- 
edge and  consent  of  plaintiff,  though  there  appears  to  have  been  no 
agreement  as  to  the  terms  upon  which  the  tenant  held  over.  Appar- 
ently it  was  understood  that  the  tenant  was  to  move  to  new  quarters 
as  soon  as  they  were  ready,  and  that  it  was  not  the  intention  of  de- 
fendant to  continue  its  occupancy  of  the  leased  premises  beyond  the 
month  of  June.  \ 

This  action  was  brought  to  recover  the  rent  of  the  store  for  the 
months  of  June,  July,  and  August,  and  of  the  flat  for  tlie  months  of 
June  and  July.  Plaintiff  was  unable  to  rent  the  store  in  July  or  Au- 
gust, but  occupied  the  flat  the  latter  month.  Defendant  admitted  its 
liability  for  the  month  of  June,  during  which  it  occupied  the  premises, 
but  claimed  that  it  was  not  liable  for  the  July  and  August  rent.  The 
trial  was  to  a  jury.  The  court  instructed  that  the  tenant's  holding  over 
after  May  31st  made  the  notice  a  nullity,  that  the  case  was  as  if  no 
notice  had  been  given,  and  that  defendant  was  liable  for  the  July  and 
August  rent.  The  verdict  was  in  accord  with  this  instruction.  Defend- 
ant moved  for  a  new  trial,  and  appealed  from  an  order  denying  such 
motion. 

The  decision  here  depends  upon  whether  the  instruction  of  the  court 
to  the  jury,  above  referred  to,  is  a  correct  statement  of  the  law  as  ap- 
pHed  to  the  facts  in  the  case. 

1.  If  the  notice  was  rendered  a  nullity  by  the  tenant's  holding  over, 
it  must  be  on  the  ground  of  waiver.  It  is  clear,  in  this  state  at  least, 
that  a  notice  by  the  landlord  to  a  tenant  to  quit  may  be  waived  by  the 
landlord,  and  that  such  notice  is  thenceforth  inoperative.  Arcade  In- 
vest. Co.  v.  Gieriet,  99  Minn.  277,  109  N.  W.  250.  See  note  to  Wisner 
V.  Richards,  Ann.  Cas.  1912D,  160. 


678  DERIVATIVE  TITLES       .  (Part  2 

It  is  doubtless  true  that  a  tenant  may  withdraw  or  waive  a  notice  to 
quit  given  by  him.  And  if  he  does  waive  it,  it  is  plainly  correct  that 
the  situation  is  as  if  no  notice  had  been  given.  Clearly,  notice  was 
necessary  in  order  to  terminate  this  tenancy  at  will  or  from  month  to 
month.    Rev.  Laws  1905,  §  3332. 

Did  the  tenant,  by  holding  over  after  the  time  named  in  the  notice, 
waive  or  withdraw  such  notice?  There  are  some  statements  in  text- 
books, and  at  least  one  reported  case,  that  lends  support  to  the  view 
that  such  holding  over  is  only  presumptive  evidence  of  waiver,  and 
does  not  operate  as  a  matter  of  law  to  continue  the  tenancy.  In  Cyc. 
the  law  is  thus  stated :  "No  continuance  of  the  tenancy  is  necessarily 
implied  from  the  mere  fact  of  a  tenant  continuing  in  possession  after 
the  expiration  of  a  notice  to  quit  given  by  such  tenant.  It  is  for  the 
jury  to  decide  whether  or  not  the  tenant,  by  remaining  in  possession, 
intends  to  waive  the  notice  and  continue  the  tenancy."    24  Cyc.  1336. 

But  one  case  is  cited  as  authority  for  the  text,  and  that  is  Jones  v. 
Sheares,  4  Ad.  &  El.  832,  6  Nev.  &  M.  428,  2  H.  &  W.  43,  5  L.  J.  K.  B. 
(N.  S.)  153.  This  case  was  determined  by  the  court  of  King's  Bench 
in  1836.  The  lessee  of  the  coal  under  certain  lands  gave  a  notice,  as 
under  the  lease  he  had  a  right  to  do,  that  at  the  end  of  two  years  he 
would  deliver  possession  and  end  the  term.  He  continued  for  two 
months  after  the  two  years  to  work  the  coal,  and  it  was  claimed  by  the 
lessor  that  the  notice  was  thereby  waived.  The  lessee  insisted  that  the 
working  was  not  carried  on  with  any  view  of  continuing  the  tenancy, 
that  the  coal  mined  was  taken  from  the  pillars  which  supported  the 
roof,  and  that  this  was  customary  on  leaving  a  mine.  It  was  held  that 
tine  question  whether  the  lessee  intended  to  waive  the  notice  and  con- 
tinue the  tenancy  was  for  the  jury.  Mr.  Tiffany  states  that  a  tenant 
holding  over  after  the  time  named  in  his  notice  of  intention  to  quit  is 
liable  in  use  and  occupation  as  a  tenant  holding  over,  but  that  such 
retention  of  possession  does  not  necessarily  operate  as  a  waiver  or 
withdrawal  of  the  notice,  so  as  to  effect  a  continuance  of  the  former 
tenancy.    2  Tiffany,  Landl.  &  T.  1464. 

But  the  decided  weight  of  authority  is  that  a  tenant  who  holds  over 
after  the  expiration  of  his  term  may  be  held  liable  as  tenant  for  a  fur- 
ther period  without  reference  to  his  actual  wishes  on  the  subject,  and 
necessarily  without  reference  to  his  intention  to  become  a  tenant  for  a 
further  term.  2  Tiffany,  §  209,  and  cases  cited.  It  would  seem  to  be 
immaterial  whether  the  term  expires  because  of  the  termination  of  the 
period  named  in. the  lease,  or  by  a  notice  to  quit,  given  where  the  lease 
requires  it  or  where  the  tenancy  is  at  will.  Graham  v.  Dempsey,  169 
Pa.  460,  32  Atl.  408;  Conway  v.  Starkweather,  1  Denio  (N.  Y.)  113; 
Schuyler  v.  Smith,  ^^l  N.  Y.  309.  10  Am.  Rep.  609.  See,  also.  Smith 
V.  Bell,  44  Minn.  524,  47  N.  W.  263.  The  doctrine  is  that  the  landlord 
has  the  option  to  hold  the  tenant  for  another  period,  or  to  treat  him  as 
a  trespasser  or  a  tenant  at  sufferance.     He  may  eject  the  tenant  or 


Ch.  5)  ESTATES   CREATED  679 

resort  to  summary  proceedings  to  recover  possession.  But  if  he  sues 
for  the  rent,  or  demands  it,  he  elects  to  hold  the  tenant  for  another 
period,  and  the  tenant  has  nothing  to  say  about  it.  The  rule  is  per- 
haps a  harsh  one,  but  it  is  too  well  settled  generally  and  by  our  own 
decisions  to  justify  departing  from  it.  Smith  v.  Bell,  supra;  3  Notes 
to  Minn.  Rep.  427. 

The  length  of  the  term  for  which  the  tenant  will  be  held  depends,  in 
the  absence  of  statute,  on  the  character  of  his  prior  tenancy.  In  the 
case  of  a  prior  tenancy  from  month  to  month,  such  as  was  the  tenancy 
in  the  case  at  bar,  the  tenant,  on  the  election  of  the  landlord  to  so  treat 
him,  becomes  or  remains  a  tenant  from  month  to  month.  Smith  v. 
Bell,  supra.  And  this  would  be  so  as  to  urban  property  in  case  of  a 
holding  over  without  any  new  agreement  after  the  termination  of  a 
lease  for  a  definite  tim6.  Laws  1901,  chap.  31 ;  Rev.  Laws  1905,  § 
3333;  Gen.  St.  1913,  §  6812;  Backus  v.  Sternberg,  59  Minn.  403,  61 
N.  W.  335;  Ouade  v.  Fitzloff,  93  Minn.  115,  100  N.  W.  660;  Slafter 
V.  Siddall,  97'^Minn.  291,  106  N.  W.  308.  See  note  in  25  L.  R.  A.  (N. 
S.)  857;  also,  in  28  Am.  St.  Rep.  639. 

We  are  forced  to  the  conclusion  that  defendant,  by  holding  over 
after  the  time  specified  for  the  termination  of  the  tenancy,  waived  the 
notice  given  by  it.  The  trial  court  was  therefore  correct  in  instructing 
the  jury  that  the  notice  was  a  nullity,  and  that  defendant  would  be 
held  just  the  same  as  though  such  notice  had  never  been  given. 

2.  It  follows  that  notice  was  necessary  in  order  to  terminate  this 
tenancy.  It  is  admitted  that  no  such  notice  was  given.  Defendant  re- 
lies on  the  statute,  before  cited  (Gen.  St.  1913,  §  6812),  in  support  of 
its  claim  that  it  is  liable  only  for  one  month's  rent.  But  the  cases  of 
Stees  v.  Bergmeier,  91  Minn.  513,  98  N.  W.  648,  Quade  v.  Fitzloff, 
and  Slafter  v.  Siddall,  supra,  are  conclusive  that  this  statute  affords 
defendant  no  relief.  It  was  enacted  to  do  away  with  the  harsh  rule 
whereby,  at  the  option  of  the  landlord,  a  tenant  under  a  lease  for  a 
definite  term  who  remained  in  possession  after  the  termination  of  his 
lease  was  bound  for  another  term  on  the  same  conditions.  If  the  stat- 
ute applies  at  all  to  a  holding  over  after  the  termination  by  notice  of  a 
tenancy  at  will  or  from  month  to  month,  it  cannot  be  construed  as  mak- 
ing a  new  tenancy  for  a  single  month.  In  Slafter  v.  Siddall,  the  lease 
was  for  a  year,  and  the  tenant  held  over  without  any  new  agreement. 
The  statute  was  applied,  and  it  was  held  that  the  tenancy  was  from 
month  to  month.  Clearly,  when  the  original  tenancy  is  one  from  month 
to  month,  and  the  tenant  has  the  right  to  give  a  month's  notice  and 
relieve  himself  from  further  liability,  the  statute  was  not  intended  to, 
and  does  not,  convert  such  tenancy  into  one  for  a  month  only.  Indeed, 
when  we  have  said  that  the  notice  was  a  nullity,  it  is  equivalent  to 
saying  that  the  tenancy  at  will  was  not  terminated.  It  remained  in 
force  until  the  tenant  quit  after  the  expiration  of  the  time  named  in  a 
new  notice. 


680  DERIVATIVE  TITLES  (Part  2 

It  follows  that  the  trial  court  was  correct  in  holding  that  the  tenancy- 
had  not  terminated,  and  that  defendant  was  liable  for  the  July  and 
August  rent.    Order  affirmed.*® 


ARBENZ  V.  EXLEY,  WATKINS  &  CO. 

(Supreme  Court  of  Appeals  of  West  Virginia,  ]  905.    57  W.  Va.  580,  50  S.  E.  813, 

4  Ann.  Cas.  625.) 

Brannon,  p.  John  Arbenz,  Sr.,  made  a  written  lease,  but  not  un- 
der seal,  to  Exley,  Watkins  &  Co.,  leasing  for  a  term  of  five  years  and 
three  months  a  brick  building,  including  the  vacant  parts  of  certain 
lots,  in  the  City  of  Wheeling,  the  term  commencing  January  1,  1896, 
and  ending  March  31,  1902,  for  the  annual  rent  of  $700.00,  commenc- 
ing April  1,  1896,  payable  in  monthly  instalments.  The  lessees  took 
possession  on  the  first  week  of  January,  and  occupied  the  premises, 
paying  rent  monthly.  On  September  15,  1898,  a  fire  totally  destroyed 
said  building.  The  lessees  paid  rent  for  that  September  and  also  for 
October,  but  with  the  rent  of  October  sent  a  letter,  October  31,  1898, 
to  Arbenz,  informing  him  that  they  "hereby"  vacate  tlie  premises  and 
surrender  them  to  him. 

In  November,  1898,  Arbenz  sued  out  a  distress  warrant  against  said 
lessees  for  rent  from  November  1,  1898,  to  October  31,  1899,  and  the 
same  having  been  levied,  a  forthcoming  bond  was  given,  and  in  the 
proceedings  upon  it  in  the  circuit  court  of  Ohio  county  a  verdict  was 
rendered  for  the  plaintiff  for  $502.54,.  after  deducting  for  failure  to 
repair  an  engine,  and  judgment  given  thereon,  and  the  defendants  took 
a  writ  of  error.  The  defendants  filed  a  plea  denying  grounds  of  at- 
tachment, and  denying  all  liability  for  the  rent  claimed. 

The  judgment  below  was  affirmed  by  this  Court.  Those  matters  will 
appear  in  52  W.  Va.  476,  44  S.  E.  149,  61  L.  R.  A.  957.  On  August  1, 
1903,  Arbenz  brought  assumpsit  against  Exley,  Watkins  &  Co.  to  re- 
cover rent  accruing  later  than  that  recovered  in  the  proceeding  above 
mentioned — to  recover  rent  for  the  period  beginning  November  1,  1899, 
and  ending  December  31,  1902,  a  period  of  38  months,  at  $700.00  per 
year,  and  the  suit  resulted  in  a  verdict  for  only  $148.15,  that  is,  for 
the  two  months  of  November  and  December,  1899,  the  court  holding 

*6  See  Mason  v.  Wierengo's  Estate,  113  Mich.  151,  71  N.  W.  4S9,  67  Am.  St. 
Rep.  461  (1897) ;  Providence  County  Sav.  Bank  v.  Hall,  16  R.  I.  154,  13  Atl. 
122  (1888),  ace. 

The  X.  Company  was  lessee  of  certain  premises  at  an  annual  rental  under  a 
lease  expiring  October  1,  1911.  In  July,  1910.  a  receiver  was  appointed  to  take 
charge  of  the  business  of  the  company.  The  receiver  at  once  took  possession 
and  paid  the  rental  in  monthly  installments  until  April,  1912,  when  he  vacated 
the  premises.  In  an  action  for  rent  accruing  after  such  vacation,  on  the  theory 
that  the  holding  over  had  created  a  tenancy  from  year  to  year,  the  court  held 
that  after  October  1,  1911,  the  receiver  was  merely  a  tenant  at  will.  Dietrich 
V.  O'Brien,  122  Md.  482,  89  Atl.  717  (1914).  See,  also,  Blumenberg  v.  INIyres, 
32  Cal.  93,  91  Am.  Dec.  560  (1867) ;  Pusey  v.  Presbyterian  Hospital  of  Omaha, 
70  Neb.  353,  97  N.  W.  475,  113  Am.  St.  Rep.  788  (1903). 


Ch.  5)  ESTATES   CREATED  681 

that  no  recovery  could  be  had  after  the  current  year  ending  that  date, 
on  the  theory  that  the  tenancy  from  year  to  year  then  closed.  The 
theory  against  the  right  to  recover  is,  that  a  few  days  after  the  fire  the 
defendants  wrote  Arbenz  the  following  letter:  "Oct.  31st,  1898.  Mr. 
John  Arbenz,  City — Dear  Sir:  We  beg  to  advise  that  we  have  va- 
cated, the  premises  known  as  west  building  on  20th  street,  destroyed 
by  fire  Sept.  15th,  last,  and  hereby  surrender  possession  of  same. 
Yours  truly,  Exley,  Watkins  &  Co." 

On  the  former  writ  of  error  we  held  that  for  want  of  a  seal  to  the 
lease  the  term  of  years  named  in  it  was  not  created,  but  that  it  created 
an  estate  from  year  to  year,  and  that  said  letter  did  not  operate  as  a 
notice  to  quit,  to  end  the  tenancy  so  as  to  preclude  recovery  of  rent  up 
to  November  1,  1899,  the  rent  in  litigation  in  the  former  proceeding. 
We  did  not  go  further,  as  no  later  rent  was  involved  in  that  case.  The 
question  presented  in  the  second  suit  is.  Did  the  tenancy  end  31st  De- 
cember, 1899?  Did  that  letter  close  the  tenancy  and  stop  the  rent  at 
that  date,  the  close  of  the  current  year  1899?  For  the  defendants  the 
contention  is,  that  the  letter,  accompanied  by  actual  vacation  of  the 
premises,  and  coupled  with  the  fact  that  in  the  circuit  court  in  April, 
1899,  Exley,  Watkins  &  Co.  made  defense  in  the  former  proceeding 
denying  liability  for  rent,  operated  as  a  notice  to  quit  and  closed  the 
tenancy  31st  December,  1899. 

Take  the  letter.  The  question  rests  mainly  on  it.  It  states  the  facts 
that  the  lessees  had  vacated,  and  then  surrendered  possession.  It  does 
not  notify  that  at  the  end  of  a  current  year  in  future  the  tenant  would 
quit,  but  states  present  acts  or  past,  vacation  and  surrender.  The 
common  law,  for  centuries,  has  required,  in  order  that  lessor  and  les- 
see, under  a  tenancy  from  year  to  year,  may  close  the  tenancy  of  his 
own  motion,  that  a  notice  to  quit  should  be  given  six  months  before 
the  end  of  the  current  year.  That  period  or  time  of  notice  must  be 
prior  to  the  close  of  a  year.  The  Code  1899,  chapter  93,  section  5,  pro- 
vides that  "a.  tenancy  from  year  to  year  may  be  terminated  by  either 
party  giving  notice  in  writing  to  the  other,  prior  to  the  end  of  any 
year,  for  three  months,  of  his  intention  to  terminate  the  same."  That 
provision  recognizes  as  still  continuing  the  common  law  estate  of  ten- 
ancy from  year  to  year  and  the  process  of  terminating  it  by  notice  to 
quit,  and  changed  it  only  in  requiring  written  notice  and  fixing  a 
shorter  time  of  notice.  Hence  it  seems  that  we  must  appeal  to  the  com-, 
mon  law  and  its  mode  of  notice  to  test  the  efficiency  of  the  letter  as 
notice  to  quit.  It  does  not  notify  of  a  future  act  of  quitting,  but  relies 
on  past  vacation,  and  present  surrender  of  possession  for  the  effect  of 
the  letter.  It  does  not  name  a  day  or  time  in  future  when  the  tenancy 
is  to  end.  The  profession  has  always  regarded  tliis  as  a  requisite  in  a 
notice  to  quit,  I  think,  2  Taylor,  Landlord  &  Ten.  §  476,  says :  "Form 
of. — The  notice  may  be  given  to  quit  on  a  particular  day ;  or,  in  general 
terms,  at  the  end  of  the  current  year  of  the  tenancy,  which  will  expire 
next  after  the  service  of  the  notice;  or,  in  one  month  after  the  next 


C82  DERIVATIVE  TITLES  (Part  2 

rent-day.  The  latter  form  of  expression  is  generally  used  where  the 
landlord  is  ignorant  of  the  period  when  the  tenancy  commenced ;  and 
it  is  preferable  even  when  the  commencement  of  the  tenancy  is  known, 
as  it  provides  against  any  misapprehension  of  the  exact  day  when  the 
tenant  entered."  1  Washburn  Real  Prop.  §  810  says:  "Notice.  The 
Time. — Whether  a  longer  or  shorter  time  of  notice  is  required,  it  must, 
in  order  to  be  binding,  clearly  indicate  the  time  when  the  tenancy  is 
to  expire,  and,  of  course,  must  be  given  a  sufficient  number  of  days 
before  the  time  so  indicated." 

The  particular  question  before  us  is,  whether  that  letter  is  bad  as  a 
notice  to  quit  because  (1)  it  is  a  quitting  at  its  date,  not  notice  of  a  fu- 
ture quitting  at  the  end  of  a  year,  and  (2)  because  it  fails  to  state  a 
time  for  quitting.  Under  the  above  and  many  other  authorities  we  are 
driven  to  say  that  it  did  not  end  the  tenancy  at  any  time.  Currier  v. 
Barker,  2  Gray  (Mass.)  224,  and  Steward  v.  Harding,  Id.,  335;  Han- 
chet  v.  Whitney,  1  Vt.  31 1  ;  Hunter  v.  Frost,  47  Minn.  1,  49  N.  W.  327; 
Grace  v.  Michaud,  50  Minn.  139,  52  N.  W.  390;  Phoenixville  v.  Wal- 
ters, 147  Pa.  501,  23  Atl.  776;  People  v.  Gedney,  15  Hun  (N.  Y.)  475; 
Prescott  V.  Elm,  7  Gush.  (Mass.)  346;  Berncr  v.  Gebhardt,  87  Mo.  App. 
409;  Huntington  v.  Parkhurst,  87  Mich.  38,  49  N.  W.  597,  24  Am.  St. 
Rep.  146;  Finklestein  v.  Herson,  55  N.  J.  Law,  217,  26  Atl.  688;  Wa- 
ters V.  Williamson,  59  N.  J.  Law,  2>2>7,  36  Atl.  665;  Godard  v.  S. 
Carolina  Railroad,  2  Rich.  (S.  C.)  346;  Huyser  v.  Chase,  13  Mich.  98; 
Rollins  V.  Moody,  72  Me.  135.  The  text-book  writers  seem  to  so  re- 
gard the  law.  I  quoted  from  some  above.  Tiedeman  on  Real  Estate, 
§  218,  says  that  "the  notice  must  not  only  be  given  for  a  certain  length 
of  time  before  the  estate  is  to  end,  but  the  estate  can  only  be  deter- 
mined at  the  expiration  of  the  time  during  which  the  tenant  may  law- 
fully hold,  i.  e.  at  the  end  of  the  rental  period  ;  it  can  only  be  determmed 
at  the  end  of  the  year,  quarter  or  month,  according  as  the  tenancy  is 
respectively  a  yearly,  quarterly  or  monthly  tenancy.  The  notice  must 
be  sufficiently  clear  in  its  terms  as  to  the  time  when  the  tenancy  is  to 
expire."  3  Minor's  Inst,  part  1,  241.  "The  notice  *  *  *  must 
end  with  the  period  at  which  the  tenancy  commences."  2  Kerr,  R. 
Prop.  1310.  1  Lomax,  Dig.  164;  1  Greenleaf's  Cruise,  R.  Prop. 
248,  §  26.  Chitty  on  Contracts  (Uth  Ed.)  485,  speaking  of  English 
common  law,  gays,  "The  notice  must  be  framed  with  reasonable  cer- 
tainty as  to  the  time  of  quitting."  In  Currier  v.  Barker,  2  Gray  (Mass.) 
227,  it  was  held  that  a  present  demand  or  notice  to  quit  was  insuffi- 
cient, and  the  rule  is  stated  as  follows : — "The  notice  to  quit  is  techni- 
cal, and  is  well  understood.  It  fixes  a  time  at  which  a  tenant  is  bound 
to  quit,  and  the  landlord  has  a  right  to  enter  at  a  time  at  which  the 
rent  terminates.  The  rights  of  both  parties  are  fixed  by  it,  and  are 
dependent  on  it.  Should  the  landlord  decline  to  enter,  and  the  tenant 
quit  according  to  notice,  the  tenant  could  no  longer  be  holden  for  rent, 
although  he  had  given  no  notice  to  the  landlord'.  The  lease  is  'deter- 
mined' by  such  notice,  properly  given  by  either  party.     It  is  manifest, 


Ch.  5)  ESTATES  CREATED  683 

therefore,  that  when  such  consequences  depend  upon  the  notice  to  be 
given,  the  notice  should  fix  with  reasonable  exactness  the  time  at  which 
these  consequences  may  begin  to  take  effect.  See,  also,  Walker  v. 
Sharpe,  14  Allen  (Mass.)  45." 

Of  course,  much  force  is  to  be  given  to  the  harmonious  construction 
of  the  many  cases  by  the  text  writers.  Still,  I  have  had  a  question 
whether  the  cases  mean  only  that  period  of  time  before  the  termination 
must  expire  on  the  day  of  the  close  of  the  year,  or  that  the  notice 
must  designate  the  time  when  the  tenant  intends  to  quit.  Such  seems 
to  be  the  law.  The  only  question  is.  Does  it  fit  this  case?  It  does  seem 
of  great  force  to  say,  that  the  only  object  of  notice  is  to  manifest  an 
intent  of  one  party  to  end  the  tenancy,  and  to  inform  the  other  party 
of  that  intent,  and  that  the  letter  in  this  case  did  that.  Arbenz  surely 
knew  that  his  tenants  designed  to  end  the  tenancy,  because  he  knew 
that  they  had  quit  the  premises  and  surrendered  possession.  What 
more  could  formal  notice  do?  True,  it  coiild  not  go  to  end  the  ten- 
ancy 31st  December,  1898,  because  from  the  letter  to  that  date  was  not 
three  months.  But  could  it  not  end  the  tenancy  at  close  of  1899? 
Now,  if  the  tenants  had  on  the  date  of  the  letter  given  notice  that  they 
would  quit  31st  December,  1899,  who  would  say  that  it  would  not  be 
sufficient?  Did  not  that  letter  disclose  intent  to  quit?  By  law  it  could 
not  operate  to  close  the  tenancy  31st  December,  1898,  because  the  time 
would  be  too  short.  Would  it  not  operate  then  as  soon  as  the  law 
would  let  it,  just  as  a  formal  notice  at  the  date  of  the  letter  would  have 
done,  that  is,  December  31,  1899?  Arbenz  had  notice  of  his  tenants'^ 
intention  to  quit.  Why  could  not  that  notice  operate  at  the  earliest 
date  the  law  would  allow  it  to  operate?  In  addition,  if  anything  more 
could  in  reason  be  demanded  to  disclose  the  intention  of  the  tenants  to 
stop  the  tenancy  and  to  inform  Arbenz  of  such  intention,  we  add  that 
the  tenants  in  April,  1899,  in  court  defended  the  claim  of  Arbenz  to 
rent  prior  to  November,  1899.  Their  defense  was  that  the  building 
was  destroyed  and  they  had  sent  that  letter  and  abandoned  possession. 
But  here  comes  in  the  answer  that  the  statute,  reiterating  common 
law  prevalent  for  centuries,  tells  how  the  tenant  must  end  his  ten- 
ancy, that  is,  by  written  notice.  It  is  dangerous  for  us  to  insert  an  ex- 
ception by  saying  that  if  the  landlord  had  knowledge  of  the  tenant's 
intention,  it  stands  for  notice.  It  may  not  be  improper  to  say  that  I 
have  given  labored  investigation  of  this  case,  as  other  members  of  the 
Court' have,  and  I  have  been  impressed  with  the  weight  of  the  line  of 
defense  just  stated,  and  have  struggled  to  find  a  justification  for  adopt- 
ing it,  as  the  payment  of  the  whole  rent  by  the  defendants,  without  any 
return,  works  a  hardship,  which  all  the  members  of  the  Court  appre- 
ciate; but  I  am  compelled  to  say  that  to  decide  against  the  plaintiffs 
would  be  to  fly  in  the  face  of  practically  si  unanimity  of  authorities 
through  several  hundred  years  in  all  quarters  where  the  common  law 
rules.  As  applied  generally  the  rule  is  right ;  as  applied  in  this  case, 
it  works  hardship ;  but  we  cannot  bend  a  fixed  rule  to  suit  a  hard  case. 


684  DERIVATIVE  TITLES  (Part  2 

Counsel  says  that  the  statute  only  requires  three  months  notice 
before  end  of  year,  and  that  the  written  notice  need  not  specify  time  of 
quitting,  and  that  to  say  so  is  to  read  such  a  requirement  into  the  stat- 
ute. We  answer  that  the  statute  only  recognizes  as  the  law  already 
the  requirement  of  notice  to  terminate  a  tenancy  from  year  to  year, 
and  it  has  not  changed  the  common  law  requisites  of  the  notice.  We 
have  cited  to  us  the  Georgia  case  of  Roberson  v.  Simons,  109  Ga.  360, 
34  S.  E.  604,  in  which  the  opinion  says  that  while  mere  abandonment 
of  premises  at  the  end  of  the  year  "might  perhaps"  be  sufficient  to 
bring  home  notice  to  the  landlord  of  the  tenant's  intention  to  terminate 
the  tenancy,  "so  as  to  prevent  the  landlord  recovering  rent  beyond  the 
year  immediately  succeeding  such  abandonment."  This  is  mere  opin- 
ion. It  was  not  at  all  in  judgment — a  thought  in  the  mind,  not  ma- 
turely considered  for  actual  judgment.  Betz  v.  Maxwell,  48  Kan.  143, 
29  Pac.  147,  seems  to  support  the  defense  in  saying  that  as  the  land- 
lord from  abandonment  of  possession  knew  of  the  intention  to  quit, 
formal  notice  was  useless.  This  seems  to  be  answered  by  the  quota- 
tion above  from  Currier  v.  Barker.  And  it  runs  counter  to  the  prin- 
ciple which  all  authorities  assert,  that  mere  abandonment  will  not  dis- 
pense with  notice,  but  the  tenancy  and  liability  for  rent  go  on.  "The 
tenant's  liability  for  rent  continues  till  he  puts  an  end  to  the  estate  by 
notice,  whether  he  continues  to  occupy  the  premises  or  not."  1  Washb^ 
R.  Prop.  §  807.  So  far  is  this  so,  that  the  landlord  may,  at  his  choice, 
relet  and  recover  the  difference,  or  let  the  premises  stand  vacant.  Mer- 
rill V.  Willis,  51  Neb.  162,  70  N.  W.  914;  6  Ballard,  R.  Prop.  §  462; 
Schuisler  v.  Ames,  16  Ala.  TZ,  50  Am.  Dec.  168;  Adams  v.  Cohoes,  127 
N.  Y,  175,  28  N.  E.  25,  is  strongly  relied  on.  The  judge  writing  the 
opinion  does  say  that  knowledge  of  intention  to  quit  brought  home  to 
the  landlord  will  dispense  with  formal  notice.  -  In  the  vast  mass  of 
New  York  decisions  it  is  readily  noticed  there  are  multitudinous  con- 
flicts. This  case  is  in  conflict  with  other  decisions  in  New  York  itself. 
It  seems  that  the  New  York  statutes  entered  into  the  case. 

We  do  not  go  on  the  theory  that  the  former  decision  is  res  judicata 
to  fix  right  to  recover  the  rent  involved  in  the  present  case.  That  case 
was  for  rent  for  a  certain  period  of  time — this  for  another.  That  case 
is  res  judicata  to  establish  that  it  was  a  tenancy  from  year  to  year,  but 
did  not  say  how  long.  A  case  may  settle  principle,  but  not  be  res  ju- 
dicata as  to  matters  not  immediately  involved. 

We  are  compelled  to  reverse  the  judgment  and  render  judgment  for 
the  plaintiff  for  his  demand.    Reversed. 


Ch.  5)  ESTATES  CREATED  685 


SECTION  6.— CONCURRENT  ESTATES 


CHALLIS,  REAL  PROPERTY. 

An  estate,  whether  in  possession  or  in  remainder,  admits  of  being 
so  limited  that  several  distinct  individuals  may  be  entitled  to  con- 
current and  simultaneous  interests.  Moreover,  several  persons  may 
take  the  same  estate  concurrently  by  descent;  either  at  the  common 
law,  in  the  case  of  a  descent  to  several  sisters,  or  the  representa- 
tives of  several  sisters ;  or  by  a  descent  in  gavelkind  among  several 
brothers,  or  their  representatives ;  or  by  other  special  custom,  among 
several  brothers  and  sisters,  or  their  representatives.  The  several  in- 
dividuals so  entitled  will,  according  to  the  nature  of  the  relation  sub- 
sisting between  their  interests,  be  (1)  joint  tenants,  (2)  tenants  in 
common,  (3)  parceners,  also  styled  coparceners,  or  (4)  tenants  by 
entireties. 

Littleton's  definition  of  joint  tenancy  is  founded  upon  the  mode 
in  which  an  estate  is  limited  to  joint  tenants.  If  lands  are  limited  to 
several  persons  by  name,  habendum  to  them  for  life,  or  lives,  those 
persons  are  joint  tenants  during  that  life  or  those  lives.  Litt.  sect, 
277.  They  have  an  estate  pur  autre  vie  in  joint  tenancy.  Similarly, 
if  lands  are  limited  to  several  persons  by  name,  habendum  to  them 
and  their  heirs,  those  persons  are  joint  tenants  in  fee  simple. 

Joint  tenancy  is  equally  applicable  to  fees  (excepts  fees  in  general 
tail,  as  mentioned  in  the  next  following  paragraph),  to  estates  of  mere 
freehold,  and  to  chattel  interests.    Litt.  sect.  28L 

An  estate  in  general  tail  cannot  be  limited  in  joint  tenancy,  be- 
cause (except  under  the  circumstances  which  would  make  the  estate 
an  estate  in  special  tail)  there  cannot  be  a  single  heir  of  the  bodies  of 
the  donees ;  and  the  right  of  the  several  heirs  in  tail  of  the  several 
donees  to  inherit,  secundum  f ormam  doni,  which  is  expressly  conferred 
upon  heirs  in  tail  by  the  statute  De  Donis,  would  be  repugnant  to  the 
right  of  the  surviving  joint  tenants,  upon  the  death  of  one,  to  enjoy 
the  whole  estate,  which  is  the  most  prominent  characteristic  of  joint 
tenancy. 

The  distinguishing  characteristic  of  joint  tenancy  is  styled  jus  ac- 
crescendi,  or  the  right  by  survivorship.  Upon  the  death  of  one  out  of 
several  joint  tenants,  the  survivors  hold  the  whole  estate,  and  nothing 
passes  to  the  representatives  in  title  (whether  real  or  personal)  of  the 
deceased  tenant.     Litt.  sect.  280. 

But  the  practical  advantage  of  the  jus  accrescendi  is  not  neces- 
sarily equal  for  each  of  the  joint  tenants;  for  two  men  may  have  a 
joint  estate  for  the  life  of  one  of  them ;  in  which  case,  if  that  one  who 
is  cestui  que  vie  should  die  in  the  lifetime  of  the  other,  the  estate 


68iS  DERIVATIVE  TITLES  (Part  2 

is  determined,  whereas,  if  the  other  should  die  in  the  lifetime  of  cestui 
que  vie,  the  latter  has  the  whole  estate  and  becomes  thenceforward 
sole  tenant  for  his  own  life.  Co.  Litt.  181b.  It  still  remains  true,  that 
each  upon  the  death  of  the  other  takes  the  whole  estate;  but  in  the 
one  case,  the  whole  estate  which  he  takes  is  reduced  to  nothing. 

The  right  by  survivorship  is  liable  to  be  defeated  by  any  act  which 
severs  the  joint  tenancy  and  turns  it  to  a  tenancy  in  common. 

Joint  tenants  must  claim  an  equal  interest  by  the  same  title  and  in 
the  same  right.  Co.  Litt.  189a;  Ibid.  299b.  Therefore  they  can  only 
take  by  purchase.  And  under  limitations  at  the  common  law,  they 
must  all  take  simultaneously.  But  in  limitations  by  way  of  use,  if  the 
use  is  declared  jointly  to  several  persons,  some  of  whom  are  not  yet 
ascertained  or  not  yet  in  being,  such  last-mentioned  persons,  if  and 
when  they  are  ascertained  or  come  into  being,  will  be  joint  tenants  with 
the  others ;  and  the  same  rule  holds  good,,  when  the  interests  arise 
by  devise.  Co.  Litt.  188a ;  and  Harg,  n.  13  thereon ;  2  Prest.  Abst.  56. 
The  identi'ty  of  the  interest  and  title  of  joint  tenants  is  commonly 
analysed  into  the  "fourfold  unity"  of  interest,  title,  time  and  posses- 
sion. 2  Bl.  Com.  180-184.  This  analysis  has  perhaps  attracted  at- 
tention rather  by  reason  of  its  captivating  appearance  of  symmetry 
and  exactness,  than  by  reason  of  its  practical  utility.  It  means  only, 
that  each  joint  tenant  stands,  in  all  respects,  in  exactly  the  same  po- 
sition as  each  of  the  others ;  and  that  anything  which  creates  a  dis- 
tinction either  severs  the  joint  tenancy  or  prevents  it  from  arising. 
Blackstone  seems  not  to  have  adverted  to  the  fact,  that  the  "unity  of 
time"  is  not,  under  the  learning  of  uses  and  devises,  an  indispensable 
requisite. 

Joint  tenants  are  said  to  be  seised  per  my  et  per  tout;  which  ex- 
pression properly  refers  to  two  only,  two  being  taken  as  a  type  or 
pattern  for  two  or  more.  In  one  sense  each  has  nothing,  and  in  another 
sense  each  has  the  whole,  nihil  per  se  separatim  et  totum  conjunctim. 
Co.  Litt.  186a.  In  another  sense,  each  has  an  equal  aliquot  share; 
namely,  for  purposes  of  alienation,  whether  total  or  partial,  and  for 
purposes  of  forfeiture.  Ibid.  Each  can  alienate  his  aliquot  share, 
and  can  thereby  sever  the  joint  tenancy  and  turn  it  to  a  tenancy  in 
common.  Herein  joint  tenants  differ  from  tenants  by  entireties,  who 
are  seised  per  tout  only,  and  not  per  my ;  and  of  whom,  accordingly, 
neither  can  prejudice  the  right  by  survivorship  of  the  other  to  suc- 
ceed to  the  whole  in  severalty.    2  Bl.  Com.  182. 

The  following  point  is  practically  important.  When  two  or  more 
persons  are  joint  tenants  for  their  lives,  whether  by  express  limita- 
tion or  by  implication  of  law,  and  although  the  limitation  be  expressly 
to  the  survivor  of  them,  then,  on  a  severance  of  the  joint  tenancy,  the 
share  of  each  will  afterwards  be  held  for  his  own  life  only.  Co. 
Litt.  191a;  2  Prest.  Abst.  63.  This  is  because  the  words  in  italics 
are  mere  surplusage,  which  express  nothing  which  the  law  would  not 
without  them  have  implied.     Hence  it  appears,  observes  Lord  Coke. 


Ch.  5)  ESTATES  CREATED  687 

that  a  severance  of  the  joint  tenancy  of  a  lease  for  lives  is  beneficial 
to  the  lessor. 

In  the  limitation  of  a  fee  simple  in  joint  tenancy,  the  words  above 
placed  in  italics,  instead  of  erring  from  mere  superfluity,  are  highly 
pernicious.  They  turn  the  limitation  to  a  joint  freehold  for  lives,  with 
a  contingent  remainder  in  fee  simple  to  the  survivor.  Butl.  n.  1  on  Co. 
Litt.  191a. 

At  the  common  law,  one  or  more  joint  tenants  could  not  be  compelled 
by  the  other  or  others  to  make  partition.  Litt.  sect.  290.  Voluntary 
partition  between  them  can  be  made  only  by  deed.  Co.  Litt.  169a; 
Ibid.  187a.  By  the  statutes  31  Hen.  VIII,  c.  1,  and  32  Hen.  VIII,  c. 
Z2,  the  same  right  of  partition  as  appertained  at  common  law  to  co- 
parceners, is  given  both  to  joint  tenants  and  to  tenants  in  common.*^ 

A  tenancy  in  common,  though  it  is  an  ownership  only  of  an  undivid- 
ed share,  is,  for  all  practical  purposes,  a  sole  and  several  tenancy 
or  ownership ;  and  each  tenant  in  common  stands,  towards  his  own 
undivided  share,  in  the  same  relation  that,  if  he  were  sole  owner  of  the 
whole,  he  would  bear  towards  the  whole.  And  accordingly,  one 
tenant  in  common  must  convey  his  share  to  another,  by  some  assurance 
which  is  proper  to  convey  an  undivided  hereditament;  and  he  cannot 
so  convey  by  release.     2  Prest.  Abst.  77. 

A  title  by  tenancy  in  common  may  be  claimed  by  prescription.  Litt. 
sect.  310.    This  proves  the  severalty  of  the  interest. 

Tenancy  in  common  may  arise  in  any  of  the  following  ways: 

(1)  By   express   limitation. 

At  the  common  law  a  gift  or  limitation  contained  in  the  premises 
of  a  deed,  which  standing  by  itself  would  have  created  a  joint  ten- 
ancy, might  be  turned  to  a  tenancy  in  common  by  express  words  in 
the  habendum ;  such  as,  habendum  the  one  moiety  to  the  one  and  the 
other  moiety  to  the  other  of  them.    Co.  Litt.  183b. 

In  modern  assurances,  which  are  commonly  made  under  the  Statute 
of  Uses,  tenancy  in  common  is  limited  in  the  habendum,  by  declaring 
the  use  "as  to  one  equal  undivided  moiety,"  or  other  fractional  part,  to 
one  of  the  persons,  with  similar  declarations  in  favour  of  the  others 
respectively. 

(2)  By  the  severance  of  a  joint  tenancy.    Litt.  sect.  292. 

(3)  Similarly,  by  severance,  through  alienation,  without  partition, 
of  the  interests  of  coparceners.    Litt.  sect.  309. 

(4)  By  construction  of  law. 

47  "It  is  trtie  that,  in  this  court  TChanceryl  jointenancies  are  not  favoured, 
because  they  are  a  kind  of  estates  that  do  not  make  provision  for  posterity, 
neither  do  I  take  it  that  courts  of  law  do  at  this  day  favour  theni ;  althoiigli 
Lord  Coke  says  that  jointenancy  is  favoured  because  the  law  is  against  the 
division  of  tenures,  but  as  tenures  are  many  of  tlieni  taken  away,  and  in  a 
great  measure  abolished,  that  reason  ceases,  and  courts  of  law  incline  the  same 
way  with  this  court."  Eawes  v.  Hawes,  1  Wils.  1G5  (1747),  per  Lord  Hard- 
wicke.  See,  also,  Rigden  v.  N'allier,  2  Ves.  252,  258  (1751).  But  see  Goddai'd.  v. 
Ivewis,  25  T.  L.  R.  813  (1909). 


688  DERIVATIVE  TITLES  (Part  2 

(i)  If  a  (contingent)  remainder  be  limited  to  the  heirs  of  two  liv- 
ing persons,  not  being  husband  and  wife,  which  remainder  must 
therefore  vest  in  interest  at  different  times,  the  respective  heirs  will 
take  as  tenants  in  common.  Windham's  Case,  5  Rep.  7,  at  p.  8a, 
resolution  3 ;   Roe  v.  Quartley,  1  T.  R.  630. 

(ii)  Under  a  limitation,  in  the  form  of  an  estate  tail,  to  two  persons 
neither  married  nor  capable  of  lawful  marriage,  or  to  three  or  more 
persons,  they  will  take  in  common.  Windham's  Case,  ubi  supra,  res- 
olution 4. 

Other  instances  might  be  specified ;  but  in  the  present  state  of  the 
law,  they  are  not  material  in  practice. 

There  is  nothing  in  the  nature  or  origin  of  tenancy  in  common 
to  import  any  necessity  that  the  shares  taken  by  the  different  ten- 
ants must  be  equal;  because  they  hold  by  several,  or  different,  ti- 
tles, not  by  a  joint  title.  Litt.  sect.  292.  Their  shares  will,  accord- 
ingly, be  unequal,  whenever  the  circumstances  under  which  their 
titles  arose  were  such  as  to  institute  any  diversity  between  them. 
On  an  express  limitation,  unequal  shares  may  be  expressly  limited; 
and  then  the  shares  will  be  unequal  from  the  commencement  of  tlie 
tenancy.  When  the  origin  of  a  tenancy  in  common  is  by  the  sever- 
ance of  a  joint  tenancy,  or  by  a  change  in  the  title  of  coparceners,  the 
shares  will  in  their  inception  be  equal ;  but  inequality  may  be  sub- 
sequently introduced,  by  more  than  one  of  such  equal  shares  becoming 
united  in  the  same  hands. 

Parceners,  or  coparceners,  are  two  or  more  persons  who  together 
constitute  a  single  heir;  as  the  daughters,  where  there  is  no  heir 
male,  in  respect  to  common  law  lands,  and  the  sons,  in  respect  to 
gavelkind  lands.  Litt.  sect.  241,  265.  As  to  gavelkind,  see  more  at 
large  Rob.  Gav.  138  et  seq.  The  same  rule  holds  of  sisters,  aunts, 
and  other  groups  of  female  kinsmen  in  the  same  degree,  there  being 
no  prior  heir  male.  Litt.  sect.  242.  But  with  respect  to  gavelkind 
lands,  it  is  to  be  observed  that,  though  by  the  custom  of  Kent  the 
rule  of  coparcenary  extends  to  collateral  descents  (Rob.  Gav.  115),  this 
is  not  necessarily  true  of  gavelkind  lands  situated  elsewhere;  and 
a  custom  to  that  effect  must  be  proved  as  a  special  custom  (Co.  Litt. 
140a,  b).  The  rule  of  representation  holds  good  in  descents  in  copar- 
cenary ;  so  that  the  issue  of  a  person  who.  if  living  at  the  time  of  the 
descent,  would  have  been  a  parcener,  will  take  in  coparcenary  along 
with  the  other  like  persons.  But  such  issue,  as  respects  the  amount 
of  their  share,  take  per  stirpes  and  not  per  capita.     Co.  Litt.  164b. 

Parceners  hold  a  position  intermediate  between  joint  tenants  and 
tenants  in  common.  Like  joint  tenants,  they  have  among  them  only 
one  single  freehold,  so  long  as  no  partition  is  made.  Like  tenants  in 
common,  they  have  among  themselves  no  jus  accrescendi;  but  upon 
the  death  of  one  parcener,  a  descent  takes  place  of  her  aliquot 
share.     And  one  parcener  may  at  common  law  convey  to  another  by 


Ch.  5)  ESTATES  CREATED  689 

an  assurance  proper  to  convey  a  several  estate,  as  a  feoffment.  Co. 
Litt.  164a.  But  such  conveyance  might  also  be  made  by  release..  Co. 
Litt.  9b. 

A  female  who,  having  no  sisters,  stands  in  the  position  of  heir,  is 
of  course  styled  the  heir  and  not  a  parcener.    Litt.  sect.  242. 

One  parcener  was,  even  at  the  common  law,  entitled  as  against 
the  others  to  a  compulsory  partition.  Litt.  sect.  241.  The  intrin- 
sic union  between  the  shares  of  parceners  is  shown  by  the  fact  that,  on 
a  partition,  nothing  was  held  to  pass  from  one  parcener  to  another,  and 
therefore  a  partition  between  them  was  no  purchase  to  make  an  altera- 
tion in  the  course  of  descent. 

Voluntary  partition  might  be  made  between  parceners  by  mere  parol 
agreement,  or  by  drawing  lots,  or  by  reference  to  the  award  of  ar- 
bitrators agreed  upon  beforehand  by  all  the  parties.  Litt.  sects.  243, 
244,  246. 

The  Court  of  Chancery  from  very  early  times  exercised  jurisdic- 
tion in  respect  to  partition,  when  land  holden  of  the  King  in  capite 
descends  upon  parceners,  one  or  more  of  them  being  under  age. 
Fitzh.  N.  B.  256,  F;  Ibid.  260,  B.  This  jurisdiction,  being  incident 
to  the  tenure,  and  a  consequence  only  of  the  necessity  for  livery  of 
the  lands  out  of  the  King's  hand,  was  practically  abolished  by  12  Car. 
II,  c.  24.  Suits  for  partition  were  also  frequently  instituted  and  en 
tertained  under  the  court's  equitable  jurisdiction,  when  this  had 
grown  into  general  recognition;  and  under  this  jurisdiction  a  decree 
for  partition  was  regarded  as  a  matter  of  right,  upon  proof  of  title.  2 
Com.  Dig.  762. 

At  the  common  law,  upon  the  death  of  one  parcener,  her  whole 
share  descended  to  her  issue. 

Tenancy  by  entireties,  occurs,  at  the  common  law,  when  a  gift  or 
conveyance,  which,  if  made  to  two  strangers,  would  create  a  joint 
tenancy,  is  made  to  a  husband  and  wife  during  the  coverture.  Litt. 
sect.  291,  and  Lord  Coke's  comment;  2  Prest.  Abst.  39.  See  Co. 
Litt.  326a :  "Where  the  husband  and  wife  are  jointly  seised  to  them 
and  their  heires  of  an  estate  made  during  the  coverture." 

The  peculiarities  of  this  kind  of  tenancy  arise  out  of  the  identity 
which  the  common  law  imagines  to  exist  between  husband  and  wife. 
Litt.  sect.  291.  It  is  equally  applicable  to  estates  in  fee  simple,  in 
fee  tail,  for  the  lives  of  the  parties,  and  pur  autre  vie.  2  Prest. 
Abst.  39. 

It  constitutes  the  most  intimate  union  of  ownership  known  to 
the  law.  A  husband,  being  tenant  by  entireties  of  freeholds  with 
his  wife,  cannot  by  any  alienation  bar  her  right  by  survivorship  in 
any  part.  Co.  Litt.  326a;  Doe  v.  Parratt,  5  T.  R.  652,  at  p.  654. 
They  are  accordingly  said  to  hold  per  tout  et  non  per  my.  2  Bl. 
Com.  182.  The  same  rule  formerly  applied  also  to  forfeiture.  Co. 
Litt.  187a. 

Aig.Prop. — 44 


GOO  DERivATiTB  TITLES  (Part  2 

Husband  and  wife  might  be  tenants  by  entireties,  as  between  them- 
selves, of  an  undivided  share;  and  might,  as  regards  the  owners 
of  the  other  undivided  shares,  be  either  tenants  in  common  or  joint 
tenants.  3d  Ed.  by  Sweet,  pp.  364,  365,  366,  367,  368,  369,  370,  2,7Z, 
375,  376,  2>77. 


MUSTAIN  V.  GARDNER. 
(Supreme  Court  of  Illinois,  190P>.     203  III.  2S4,  G7  N.  E.  779.) 

BoCGS,  J.  The  appellants  are  the  heirs-at-law  of  one  Ola  I.  l\Tus- 
tain,  who  departed  this  life  on  the  Uth  day  of  December,  1900.  They 
filed  a  bill  in  equity  in  the  circuit  court  of  McDonough  county  against 
Sarah  A.  Gardner  and  Charles  H.  Gardner,  her  husband,  for  the 
partition  of  lots  3  and  4  in  block  5,  in  Davis'  addition  to  tlie  village 
of  Blandinsville.  The  title  to  the  said  lots  was  in  one  John  T.  JMustain 
at  the  time  of  his  deadi.  He  left  a  will  containing  but  two  clauses, 
which  are  as  follows : 

"First — It  is  my  will  that  my  funeral  expenses  and  all  of  my  just 
debts  be  fully  paid. 

"Second — To  my  beloved  daughter,  Ola  I.,  and  my  beloved  wife, 
Sarah  A.  Mustain,  jointly,  I  give,  devise  and  bequeath  lots  three  (3) 
and  four  (4),  in  block  five  (5),  in  Davis'  second  addition  to  the  late 
town  (now  village)  of  Blandinsville,  to  them  and  to  tlieir  heirs  and 
assigns  forever." 

The  chancellor  construed  the  second  clause  of  the  will  to  devise 
the  premises  to  the  devisees  therein  named  as  joint  tenants,  and  held 
that  upon  the  death  of  the  said  Ola  I.  Mustain  the  title  thereto  inured 
as  an  entirety  to  the  said  Sarah  A.  Gardner,  nee  Mustain,  as  the  sur- 
viving joint  tenant,  and  sustained  a  demurrer  to  the  bill  and  dismissed 
the  case. 

The  only  question  presented  by  this  record  is  whether  the  devisees 
took  as  joint  tenants  or  as  tenants  in  common.  Joint  tenancies  are 
looked  upon  with  disfavor  in  this  State.  For  this  reason  section  5  of 
the  act  concerning  conveyances  (1  Starr.  &  Cur.  Stat.  1896,  p.  916,) 
was  adopted.  The  section  reads  as  follows:  "No  estate  in  joint  ten- 
ancy in  any  lands,  tenements  or  hereditaments,  shall  be  held  or  claimed 
under  any  grant,  devise  or  conveyance  whatsoever,  heretofore  or 
hereafter  made,  other  than  to  executors  and  trustees,  unless  the  prem- 
ises therein  mentioned  shall  expressly  be  thereby  declared  to  pass,  not 
in  tenancy  in  common,  but  in  joint  tenancy;  and  every  such  estate, 
other  than  to  executors  and  trustees,  (unless  otherwise  expressly  de- 
clared as  aforesaid,)  shall  be  deemed  to  be  in  tenancy  in  common."  ** 
The  devise  does  not  expressly  declare  that  the  estate  thereby  created 

48  "American  statutes  on  the  subject  are  of  three  classes:  (a)  Those  revers- 
ins:  the  couunon  law  rule  that  an  estate  granted  or  devised  to  two  or  more  per- 
sons is  presumed  to  create  a  joint  tenancy  rather  than  a  tenancy  in  common; 
(b)  those  destroying  survivorship  ;   (c;  those  expressly  abolishing  joint  tenancy." 


Ch.  5)  ESTATES  CREATED  G91 

and  devised  is  an  estate  in  joint  tenancy  and  not  an  estate  in  common. 
But  such  a  declaration  is  not  indispensable.  It  is  enough  if  it  shall  ap- 
pear from  the  phraseology  of  the  devise  that  the  testator  understood 
the  nature  and  incidents  of  the  two  estates,  and  the  language  employed 
be  such  as  to  clearly  and  explicitly  show  that  the  premises  are  not 
to  pass  in  tenancy  in  common.  Slater  v.  Gruger,  165  111.  329,  46  N. 
E.  235.  In  the  absence  of  an  affirmative  declaration  that  the  estate 
devised  is  in  joint  tenancy,  an  estate  in  tenancy  in  common  will  be 
devised,  unless  it  clearly  and  explicitly  appears  from  the  language  em- 
ployed that  the  testator  understood  the  nature  and  incidents  of  the 
different  estates  and  intended  to  create  a  joint  tenancy.  The  quality 
of  survivorship  is  the  distinguishing  feature  of  a  joint  tenancy,  and 
where  the  grant  or  devise  expressly  imparts  that  quality  to  the  estate, 
as  did  the  deed  under  consideration  in  Slater  v.  Gruger,  supra,  it  will 
be  deemed  effectual  to  create  a  joint  tenancy,  though  tlie  negation 
indicated  by  the  statute  be  omitted. 

The  devise  under  consideration  does  not,  in  terms,  negative  tlie  pre- 
sumption which  arises  from  the  statute  that  it  was  the  intention  of 
the  testator  to  create  an  estate  in  tenancy  in  common,  and  does  not,  in 
terms,  declare  it  to  be  the  intent  to  create  a  joint  tenancy ;  nor  do  we 
find  anything  in  the  language  of  tlie  devise  to  indicate  that  the  testa- 
tor understood  the  nature  and  incidents  of  the  different  estates,  or 
either  of  them,  and  desired  that  an  estate  having  the  peculiar  character- 
istic of  survivorship  should  pass  by  the  devise.  The  word  "jointly," 
found  in  the  devise,  cannot  be  accepted  as  sufficient  to  show,  clearly 
and  explicitly,  that  the  testator  intended  that  the  estate  devised  should 
possess  the  attribute  of  survivorship.  Tenants  in  common  or  coparcen- 
ers hold  the  estate  "jointly"  until  a  severance  is  effected.  Davis  v. 
Smith,  4  Har.  (Del.)  68;  Billingslea  v.  Baldwin,  23  Ud.  115.  It  is 
entirely  consistent  with  the  use  made  by  the  testator  of  this  word 
"jointly"  to  construe  it  as  indicating  only  an  intent  to  devise  vlie  estate 
to  both  devisees,  and  as  it  cannot  be  construed  to  declare,  explicitly 
and  clearly,  the  intent  that  the  estate,  as  an  entirety,  should  inure  to 
the  survivor  of  the  devisees,  it  cannot  avail  to  take  the  devise  out 
of  the  operation  of  the  statute.  The  statute  must  be  given  effect  and 
the  estate  devised  declared  to  be  an  estate  in  tenancy  in  common. 

The  decree  is  reversed  and  the  cause  remanded  to  the  circuit  court, 
with  directions  to  that  court  to  overrule  the  demurrer  to  the  bill  and 
require  the  defendants  to  plead,  answer  or  demur  thereto.  Reversed 
and  remanded,  with  directions.*® 

Brf'wster  on  Conveyancing,  §  151.  The  student  should  consult  the  statutes 
and  decisions  of  his  state. 

In  Ohio  the  court  early  refused  to  recosinize  joint  tenancies  as  at  common 
la^v.  Sergeant  v.  Steinlierger.  2  Ohio,  ^505,  15  Am.  Dec.  553  (1S2()).  In  Connec- 
ticut the  court  refused  to  allow  the  right  of  survivorship.  Whittlesey  v.  Ful- 
ler, 11  Coini.  ,337  (1S36). 

4  9  Overheiser  v.  Lackey,  207  N.  Y.  229,  100  N.  E.  738,  Ann.  Cas.  1014C,  229 
(1913) :  Doran  v.  Beale.  106  Miss.  305,  m  South.  fi47  (1013),  aco.  Case  v.  Owen. 
139  Ind.  22,  38  N.  E.  395,  47  Am.  St.  Rep.  253  (1894),  contra. 


692  DERIVATIVE  TITLES  (Part  2 


THORNBURG  v.  WIGGINS. 

(Supreme  Court  of  Indiana,  1893.     135  Ind.  178,  34  N.  E.  999,  22  I*  R.  A.  42, 

41  Am.  St.  Kep.  422.)' 

Daili^y,  J.  This  was  an  action  instituted  in  the  court  below,  in 
two  paragraphs,  in  the  first  of  which  appellees  allege,  in  substance, 
that  on  and  before  December  15,  1884,  one  Lemuel  Wiggins  was  tlie 
owner  of  a  certain  tract  of  real  estate  therein  described,  containing 
eighty  acres;  that  on  said  day  said  Lemuel  and  his  wife,  Mary,  ex- 
ecuted and  delivered  to  the  appellees  a  warranty  deed,  conveying  to 
them  the  fee-simple  of  said  real  estate;  that  at  the  time  of  said  con- 
veyance tlie  appellees  were,  ever  since  have  been,  and  now  are,  hus- 
band and  wife;  that  said  deed  conveyed  to  the  appellees  the  title  to 
said  real  estate  which  they  took  and  accepted,  ever  since  have  held, 
and  now  hold  by  entireties  and  not  otherwise ;  that  appellees  hold  their 
title  to  said  real  estate  by  said  deed  of  Lemuel  Wiggins,  and  not  other- 
wise; that  on  the  24th  "day  of  April,  1877,  Isaac  R.  Howard  and 
Isaac  N.  Gaston,  who  were  defendants  below,  recovered  a  judgment 
in  the  Randolph  Circuit  Court  for  the  sum  of  $403.70  and  costs, 
against  one  John  T.  Burroughs  and  the  appellee,  Daniel  S.  Wiggins, 
as  partners,  doing  business  under  the  firm  name  of  Burroughs  and 
Wiggins ;  that  on  May  12,  1886,  said  Howard  and  Gaston  caused  an 
execution  to  be  issued  on  said  judgment  and  placed  in  the  hands  of 
the  appellant,  Thornburg,  as  sheriff  of  said  county,  and  directed  him 
to  levy  the  same  on  said  real  estate,  and  that  said  sheriff  did,  on  the 
25th  day  of  May,  1886,  levy  said  execution  on  said  real  estate,  or  on 
the  one-half  interest  in  value  thereof,  taken  as  the  property  of  said 
appellant,  Daniel  S.  Wiggins,  to  satisfy  said  writ;  tliat  pursuant  to 
the  levy  tliereof  said  sheriff  proceeded  by  the  direction  of  said  Howard 
and  Gaston  to  advertise  said  real  estate  for  sale  under  said  execution 
and  levy  to  make  said  debt,  and  did,  on  the  8th  day  of  June,  advertise 
the  same  for  sale  on  the  3d  day  of  July,  1886,  and  will,  on  said  day, 
sell  the  same,  unless  restrained  and  enjoined  from  so  doing  by  the 
court;  that  said  Daniel  S.  Wiggins  has  no  interest  in  said  premises, 
subject  to  sale  thereon;  that  the  appellees  hold  the  title  thereto  as 
tenants  by  entireties,  and  not  otherwise;  that  the  sale  of  said  tract 
on  said  execution  would  cast  a  cloud  on  the  appellee's  title,"  etc. 

The  second  paragraph  is  the  same  as  the  first,  in  substantial  aver- 
ments, except  that  in  this  paragraph  the  appellees  set  out  as  a  part 
thereof  a  copy  of  the  deed  under  which  they  claim  title  to  said  real 
estate  as  such  tenants  by  entireties. 

The  granting  clause  of  the  deed  is  as  follows :  "This  indenture  wit- 
nessed!, that  Lemuel  Wiggins  and  Mary  Wiggins,  his  wife  of  Ran- 
dolph county,  in  the  State  of  Indiana,  convey  and  warrant  to  Daniel 
S.  Wiggins  and  Laura  Belle  Wiggins,  his  wife,  in  joint  tenancy,"  etc. 

Appellants  separately  and  severally  demurred  to  each  paragraph  of 


Ch.  5)  ESTATES  CREATED  693 

the  complaint,  and  their  demurrers  were  overruled  by  the  court,  to 
which  the  appellants  excepted,  and,  refusing  to  answer  the  complaint, 
judgment  was  rendered  in  favor  of  appellees  on  said  demurrers. 

Appellants  appeal,  assigning  as  errors  the  overruling  of  said  demur- 
rers, and  urge  that  the  appellees  under  the  deed  took  as  joint  ten- 
ants, and  hence  that  the  husband's  interest  is  subject  to  levy  and  sale 
upon  execution.  A  joint  tenancy  is  an  estate  held  by  two  or  more 
persons  jointly,  so  that  during  the  lives  of  all  they  are  equally  entitled 
to  tlie  enjoyment  of  the  land,  or  its  equivalent  in  rents  and  profits, 
but,  upon  the  death  of  one  his  share  vests  in  the  survivor  or  survivors 
until  there  be  but  one  survivor,  when  the  estate  becomes  one  in  sever- 
alty in  him  and  descends  to  his  heirs  upon  his  death.  It  must  always 
arise  by  purchase,  and  can  not  be  created  by  descent.  Such  estates  may 
be  created  in  fee,  for  life,  for  years,  or  even  in  remainder.  But  the 
estate  held  by  each  tenant  must  be  alike.  Joint  tenancy  may  be  de- 
stroyed by  anything  which  destroys  the  unity  of  title.  Our  law  aims 
to  prevent  their  creation  and  they  can  not  arise,  except  by  the  instru- 
ment providing  for  such  tenancy.     Griffin  v.  Lynch,  16  Ind.  396. 

The  9th  Am.  and  Eng.  Ency.  of  Law,  850,  says:  "Husband  and 
wife  are,  at  common  law,  one  person,  so  that  when  realty  or  personalty 
vests  in  them  both  equally  *  *  *  they  take  as  one  person,  they 
take  but  one  estate  as  a  corporation  would  take.  In  the  case  of  realty, 
they  are  seized  not  per  my  et  per  tout,  as  joint  tenants  are,  but  simply 
per  tout;  both  are  seized  of  the  whole,  and  each  being  seized  of  the 
entirety,  they  are  called  tenants  by  the  entirety,  and  the  estate  is  an 
estate  by  entireties.  *  *  *  Estates  by  entireties  may  be  created 
by  will,  by  instrument  of  gift  or  purchase,  and  even  by  inheritance. 
Each  tenant  is  seized  of  the  whole,  the  estate  is  inseverable — can  not 
be  partitioned ;  neither  husband  nor  wife  can  alone  affect  the  inher- 
itance, the  survivor's  right  to  the  whole." 

This  tenancy  has  been  spoken  of  as  "that  peculiar  estate  which  arises 
upon  the  Conveyance  of  lands  to  two  persons  who  are,  at  the  time, 
husband  and  wife,  commonly  called  estates  by  entirety."  As  to  the 
general  features  of  estates  by  entireties  there  is  little  room  for  con- 
troversy, and  there  is  none  between  counsel.  Our  statute  re-enacts  the 
common  law.  Arnold  v.  Arnold,  30  Ind.  305 ;  Davis  v.  Clark,  26 
Ind.  424,  89  Am.  Dec.  47L 

Strictly  speaking,  estates  by  entireties  are  not  joint  tenancies.  Chan- 
dler V.  Cheney,  37  Ind.  391 ;  Hulett  v.  Inlow,  57  Ind.  412,  26  Am.  Rep. 
64;  the  husband  and  wife  being  seized  not  of  moieties,  but  both  seized 
of  the  entirety  per  tout  and  not  per  my.  Jones  v.  Chandler,  40  Ind. 
588;    Davis  v.  Clark,  supra;    Arnold  v.  Arnold,  supra. 

It  has  been  said  by  this  court  in  some  of  the  earlier  decisions  that 
no  particular  words  are  necessary.  A  conveyance  which  would  make 
two  persons  joint  tenants  will  make  a  husband  and  wife  tenants  by  the 
entirety.  It  is  not  even  necessary  that  they  be  described  as  such  or 
their  marital  relation  referred  to.     Morrison  v.  Seybold,  92  Ind.  298; 


G94  DERIVATIVE  TITLES  (Part  2 

Hadlock  v.  Gray,  104  Ind.  596,  4  N.  E.  167;  Dodge  v.  Kinzy,  101 
Ind.  102;   Hulett  v.  Inlow,  supra;   Chandler  v.  Cheney,  supra. 

But  the  court  has  said  that  the  general  rule  may  be  defeated  by  the 
expression  of  conditions,  limitations  and  stipulations,  in  the  convey- 
ance, which  clearly  indicate  the  creation  of  a  different  estate.  Hadlock 
V.  Gray,  supra;  Edwards  v.  Beall,  75  Ind.  401. 

Having  its  origin  in  the  fiction  or  common  law  unity  of  husband  and 
wife,  the  courts  of  some  States  have  held  that  married  women's  acts, 
extending  tlieir  rights,  destroyed  estates  by  entirety,  but  this  court 
holds  otherwise.     Carver  v.  Smith,  90  Ind.  222.  46  Am.  Rep.  210.^° 

And  the  greater  weight  of  authority  is  in  its  favor.  Our  decisions 
hold  that  neither,  alone,  can  alienate  such  estate.  Jones  v.  Chandler, 
supra ;    Morrison  v.  Seybold,  supra. 

There  can  be  no  partition.     Chandler  v.  Cheney,  supra. 

A  mortgage  executed  by  the  husband  alone  is  void.  Jones  v.  Chan- 
dler, supra. 

And  the  same  is  true  of  a  mortgage  executed  by  both  to  secure  a 
debt  of  the  husband.    Dodge  v.  Kinzy,  supra. 

And  the  wife  can  not  validate  it  by  agreement  with  the  purchaser 
to  indemnify  in  case  of  loss  arising  on  account  of  it.  State  ex  rel., 
v.  Kennett,   114  Ind.  160,  16  N.  E.   173. 

A  judgment  against  one  of  them  is  no  lien  upon  it.  Barren  Creek 
Ditching  Co.  v.  Beck,  99  Ind.  247;  McConnell  v.  Martin,  52  Ind.  434; 
Orthwein  v.  Thomas  (111.)  13  N.  E.  564. 

Upon  the  death  of  one,  tlie  survivor  takes  the  whole  in  fee.  Arnold 
v,  Arnold,  supra. 

The  deceased  leaves  no  estate  to  pay  debts.  Simpson  v.  Pearson, 
Admr.,  31  Ind.  1,  99  Am.  Dec.  577. 

And,  during  their  joint  lives,  there  can  be  no  sale  of  any  part  on 
execution  against  either.  Carver  v.  Smith,  supra ;  Dodge  v.  Kinzy, 
supra ;  Hulett  v.  Inlow,  supra ;  Chandler  v.  Cheney,  supra ;  Davis  v. 
Clark,  supra;  McConnell  v.  Martin,  supra;  Cox's  Adm'i*  v.  Wood, 
20  Ind.  54. 

The  statutes  extending  the  rights  of  married  women  have  no  effect 
whatever  upon  estates  by  entirety.     Carver  v.  Smith,  supra. 

Such  estate  is,  in  no  sense,  either  the  husband's  or  the  wife's  sep- 
arate property.  The  husband  may  make  a  valid  conveyance  of  his 
interest  to  his  wife,  because  it  is  with  her  consent.  Enyeart  v.  Kepler, 
118  Ind.  34. 

5  0  Koulston  V.  Hall,  66  Ark.  305,  50  S.  W.  600,  74  Am.  St.  Rop.  97  (1S99) ; 
Hiles  V.  Fisher,  144  N.  Y.  30G,  .30  X.  E.  .337,  .30  Ia  R.  A.  .30.^,  43  Am.  St.  Rep. 
762  (1895) ;  BramberiT's  Estate,  156  Pa.  628,  27  Atl.  405.  22  I..  R.  A.  594.  36  Aiu. 
St.  Rep.  64  (1893),  aec.  W'ilson  v.  Wilson.  43  Minn.  .398,  45  N.  W.  710  (1890), 
dictuui ;  Swan  v.  Walden,  156  Cal.  195,  103  I'ac.  931,  134  Am.  St.  Rep.  118,  20 
Ann.  Cas.  194  (1909).  dictum,  contra. 

In  some  states,  irrespective  of  statute,  the  courts  hare  held  there  was  no 
tenancy  by  the  entirety.  Whittlesev  v.  Fuller.  11  Conn.  .337  (1836);  Kerner  v. 
McDonald,  60  Neb.  663,  84  N.  W.  92.  83  Am.  St.  Rep.  550  (1900);  Farmers'  & 
Merchauts'  Nat.  Bank  v.  Wallace,  45  Ohio  St.  152,  12  N.  E.  439  (1SS7). 


Ch.  5)  ESTATES   CREATED  095 

The  rule  that  husband  and  wife  take,  by  entireties  was  enacted  in 
this  territory  in  1807,  nine  years  before  Indiana  was  vested  with 
statehood,  and  has  been  repeated  in  each  succeeding  revision  of  our 
statutes.  It  has  tlius  been  the  law  of  real  property,  with  us,  for  eighty- 
six  years. 

Section  2922,  R.  S.  1881,  provides  that  "all  conveyances  and  devises 
of  lands,  or  of  any  interest  therein,  made  to  two  or  more  persons,  ex- 
cept as  provided  in  the  next  following  section,  shall  be  construed  to 
create  estates  in  common  and  not  in  joint  tenancy,  unless  it  shall  be 
expressed  therein  that  the  grantees  or  devisees  shall  hold  the  same  in 
joint  tenancy  and  to  the  survivor  of  them,  or  it  shall  manifestly  ap- 
pear, from  the  tenor  of  the  instrument,  that  it  was  intended  to  create 
an  estate  in  joint  tenancy."  , 

Section  2923  provides  that  the  preceding  section  shall  not  apply  to 
conveyances  made  to  husband  and  wife.*^^ 

Under  a  statute  of  the  State  of  Michigan,  similar  in  all  its  essential 
qualities  to  our  own,  the  court  held  that  "wh^re  lands  are  conveyed,  in 
fee,  to  husband  and  wife,  they  do  not  take  as  tenants  in  common." 
Fisher  v.  Provin,  25  Mich.  347. 

They  take  by  entireties;  whatever  would  defeat  the  title  of  one. 
would  defeat  the  title  of  the  other.  Manwaring  v.  Powell,  40  Mich. 
371.  ^ 

They  hold  neither  as  tenants  in  common  nor  as  ordinary  joint  ten- 
ants. The  survivor  takes  the  whole.  During  the  lives  of  both,  neithei 
has  an  absolute  inheritable  interest,  neither  can  be  said  to  own  an  un- 
divided half,  ^tna  Ins.  Co.  v.  Resh,  40  Mich.  241 ;  Allen  v.  Allen, 
47  Mich.  74,  10  N.  W.  113. 

While  the  rule  of  entireties  was  predicated  upon  a  fiction,  the  legis- 
lative intent,  in  this  State,  has  always  been  to  preserve  this  estate,  and 
has  continued  the  peculiar  statute  for  this  purpose.  Estates  by  en- 
tireties have  been  preserved  as  between  husband  and  wife,  although 
joint  tenancies  between  unmarried  persons  have  been  abolished,  so  as 
to  provide  a  mode  by  which  a  safe  and  suitable  provision  could  be 
made  for  married  women.    Carver  v.  Smith,  supra. 

"Where  a  rule  of  property  has  existed  for  seventy  years  and  is  sus- 
tained by  a  strong  and  uniform  line  of  judicial  decisions,  there  is  but 
little  room  for  the  court  to  exercise  its  judgment  on  the  reasons  on 
which  the  rule  was  founded.     Such  a  rule  of  property  will  be  over- 

51  In  Marburg  v.  Cole,  49  Md.  402,  33  Am.  Rep.  266  (1S7S),  a  statute  pro- 
viding that  no  instrument  of  conveyance  shall  be  construed  to  create  a  joint 
tenancy  unless  it  is  e.xpressly  provided  that  the  property  shall  t-e  so  held,  was 
not  considered  to  affect  the  creation  of  tenancies  by  the  entireties,  for  they  are 
not  joint  tenancies. 

But  where  the  statute  provided  that  "conveyances  to  two  or  more  in  their 
own  right  create  a  tenancy  in  connnon,  unless  a  contrary  interest  is  expressed" 
it  was  held  that  a  conveyance  to  two  who  were  husband  and  wife  created  a 
tenancy  in  common.  Bader  v.  Dyer,  106  Iowa,  715,  77  N.  W.  469,  68  Am.  St. 
Rep.  332  (1898). 


696  DERIVATIVE  TITLES  (Part  2 

ruled  only  for  the  most  cogent  reasons  and  upon  the  strongest  convic- 
tions of  its  incorrectness.  It  is  evident  that  the  Legislature  of  1881 
did  not  intend  to  repeal  the  statutes  establishing  tenancies  by  entire- 
ties. They  simply  intended  to  enlarge,  in  some  particulars,  the  sep- 
arate power  of  the  wife,  which  existed  already  under  the  acts  of  1852 
and  the  year  following.  *  *  *  'j^  ^j^  ^ot  abolish  estates  by  en- 
tireties as  between  husband  and  wife,  but  provided  that  when  a  joint 
deed  was  made  to  husband  and  wife,  they  should  hold  by  entireties, 
and  not  as  joint  tenants  or  tenants  in  common.'  "  Carver  v.  Smith, 
supra. 

In  Chandler  v.  Cheney,  supra,  the  court  says :  "It  was  a  well  settled 
rule  at  common  law,  that  the  same  form  of  words,  which,  if  the  gran- 
tees were  unmarried,  would  have  constituted  them  joint  tenants,  will, 
they  being  husband  and  wife,  make  them  tenants  by  entirety.  The  rule 
has  been  changed  by  our.  statute  above  quoted." 

The  whole  trend  of  authorities,  however,  is  in  the  direction  of  pre- 
serving such  tenancies,  where  the  grantees  sustain  the  relation  of  hus- 
band and  wife,  unless  from  the  language  employed  in  the  deed  it  is 
manifest  that  a  different  purpose  was  intended. 

Where  a  contrary  intention  is  clearly  expressed  in  the  deed,  a  dif- 
ferent rule  obtains. 

"A  husband  and  wife  may  take  real  estate  as  joint  tenants  or  ten- 
ants in  common,  if  the  instrument  creating  the  title  use  apt  words  for 
the  purpose."  1  Preston  on  Estates,  132;  2  Blackstone's  Com.,  Shars- 
wood's  note;  4  Kent's  Com.  side  page  363;  1  Bishop  on  Married 
Women ;  Freeman  on  Co-Tenancy,  section  12 ;  Fladung  v.  Rose,  58 
Md.  13,  24. 

"And  in  case  of  devise  and  conveyances  to  husband  and  wife  to- 
gether, though  it  has  been  said  that  they  can  take  only  as  tenants  by 
entireties,  the  prevailing  rule  is  that,  if  the  instrument  expressly  so 
provides,  they  may  take  as  joint  tenants  or  tenants  in  common."  Stew- 
art on  Husband  and  Wife,  sections  307-310;.  Tiedeman  on  Real  Prop- 
erty, section  244. 

"And  as  by  common  law  it  was  competent  to  make  husband  and 
wife  tenants  in  common  by  proper  words  in  the  deed  or  devise,"  etc. 
Hoffman  v.  Stigers,  28  Iowa,  310;  Brown  v.  Brown,  133  Ind.  476, 
32  N.  E.  1128,  33  N.  E.  615. 

So  it  seems  that  husband  and  wife  may,  by  express  words,  be  made 
tenants  in  common  by  gift  to  them  during  coverture."  McDermott  v. 
French,  15  N.  J.  Eq.  80. 

In  Hadlock  v.  Gray,  104  Ind.  596,  599,  4  N.  E.  167,  168,  a  convey- 
ance had  been  made  to  Isaac  Cannon  and  Mary  Cannon,  who  were 
husband  and  wife,  during  their  natural  lives,  and  the  court  says : 
"The  language  employed  in  the  deed  under  examination  plainly  de- 
clares that  Isaac  and  Mary  Cannon  are  not  to  take  as  tenants  by  en- 
tirety.    This  result  would  follow  from  the  provisions  destroying  the 


Ch.  5)  ESTATES  CREATED  697 

survivorship,  for  this  is  the  grand  and  essential  characteristic  of  such 
a  tenancy.  *  *  *  The  whqle  force  of  the  language  employed  is 
opposed  to  the  theory  that  the  deed  creates  an  estate  in  fee  in  the  hus- 
band and  wife." 

The  court  further  says :  "It  is  true  tliat  where  real  property  is  con- 
veyed to  husband  and  wife  jointly  and  there  are  no  limiting  words 
in  the  deed,  they  will  take  the  estate  as  tenants  in  entirety.  *  *  * 
But  while  the  general  rule  is  as  we  have  stated  it,  there  may  be  con- 
ditions, limitations,  and  stipulations  in  the  deed  conveying  the  prop- 
erty, which  will  defeat  the  operation  of  the  rule.  The  denial  of  this 
proposition  involves  the  affirmation  of  tlie  proposition  that  a  grantor 
is  powerless  to  limit  or  define  the  estate  which  he  grants,  and  this  would 
conflict  with  the  fundamental  principle  that  a  grantor  may  for  him- 
self, determine  what  estate  he  will  grant.  To  deny  this  right  would 
be  to  deny  to  parties  tlie  right  to  make  their  own  contracts.  It  seems 
quite  clear,  upon  principle,  that  a  grantor  and  his  grantees  may  limit 
and  define  the  estate  granted  by  the  one  and  accepted  by  the  other, 
although  the  grantees  be  husband  and  wife." 

The  court  then  adopts  the  language  of  Washburn,  supra,  and  Tiede- 
man,  supra. 

In  Edwards  v.  Beall,  supra,  the  court  hold  that  when  lands  are 
granted  husband  and  wife,  as  tenants  in  common,  they  will  hold  by 
moieties,  as  other  distinct  and  individual  persons  would  do. 

If,  as  contended  by  appellees,  the  rule  prevail  that  the  same  words 
which,  if  the  grantees  were  unmarried,  would  have  constituted  them 
joint  tenants,  will,  they  being  husband  and  wife,  make  them  tenants 
by  entireties,  then  it  would  result  as  a  logical  conclusion  that  husband 
and  wife  cannot  be  joint  tenants.  Because,  by  this  rule,  words,  how- 
ever apt  or  appropriate  to  create  a  joint  tenancy,  would,  in  a  convey- 
ance to  husband  and  wife,  result  in  an  estate  by  entireties — joint  ten- 
ancy would  be  superseded  or  put  in  abeyance  by  the  estate  created 
by  law — tenancy  by  entirety,     r 

The  result  of  such  reasoning  would  be  to  destroy  the  contractual 
power  of  the  parties  where  this  relationship  between  the  grantees  is 
shown  to  exist.  Any  other  process  of  reasoning  would  carry  the  rule 
too  far,  and  we  must  hold  it  modified  to  the  extent  here  indicated. 
Husband  and  wife,  notwithstanding  tenancies  by  entirety  exist  as  they 
did  under  the  common  law,  may  take  and  hold  lands  for  life,  in  joint 
tenancy,  or  in  common,  if  appropriate  language  be  expressed  in  the 
deed  or  will  creating  it,  and  we  know  of  no  more  apt  terms  to  create 
a  joint  tenancy  in  the  grantees  in  this  estate  than  the  expression  "con- 
vey and  warrant  to  Daniel  S.  Wiggins  and  Laura  Bejle  Wiggins  in 
joint  tenancy." 

These  words  appear  in  the  granting  clause  of  the  deed  conveying 
the  land  in  question,  and  the  estate  accepted  and  held  by  the  grantees 
is  thereby  limited,  and  they  hold  not  by  entireties  but  in  joint  ten- 


698  DERIVATIVE  TITLES  (Part  2 

ancy.     A  joint  tenant's  interest  in  property  is  subject  to  execution. 
Freeman  on  Ex.  125. 

Judgment  reversed,  with  instructions  to  the  circuit  court  to  sustain 
tlie  demurrer  to  each  paragraph  of  the  complaint.^^ 


PEGG  V.  PEGG. 

(Supreme  Court  of  Michigan,  1011.     1G5  INIich.  228,  130  N.  W.  617,  33  L.  It.  A. 
[N.  S.]  1G6,  Ann.  Cas.  1912C,  925.) 

Bird,  J.  The  bill  of  complaint  in  this  cause  calls  for  the  construc- 
tion of  a  deed  made  by  Davis  Pegg  to  Mary  C.  Pegg,  the  complain- 
ant. Davis  Pegg  was  the  husband  of  complainant,  and  in  the  year 
1897  he  conveyed  to  her,  by  warranty  deed  in  the  usual  form,  an  un- 
divided one-half  interest  in  and  to  the  following  described  premises : 

■''The  west  half  (W.  i/^)  of  the  southeast  quarter  (S.  E.  14)  of  sec- 
tion three  (3),  and  the  west  half  (W.  1/0)  of  the  northeast  quarter  (N. 
E.  ^/4)  of  section  ten  (10),  in  Grand  Traverse  county." 

In  the  deed,  between  the  granting  and  the  habendum  clauses,  is  in- 
serted the  following  clause : 

"The  objection  and  purpose  of  this  deed  is  to  convey  to  said  sec- 
ond party  such  an  interest  in  said  land  that  the  parties  hereto  will 
have  an  estate  in  entirety,  and  that  the  same  shall  survive  and  vest  in 
the  survivor  as  a  full  and  complete  estate." 

The  deed  was  recorded  in  1901,  and  in  1902  Davis  Pegg  died. 
Complainant  is  in  possession  of  the  premises,  and  claims  title  thereto 
on  the  theory  that  she  and  her  husband  owned  the  premises  as  ten- 
ants by  entirety,  and,  she  being  the  survivor,  she  takes  the  whole.  It 
is  claimed  by  the  defendants,  who  are  brothers  and  children  of  de- 
ceased brothers  of  Davis  Pegg,  that  Davis  Pegg  and  complainant  were 
the  owners  of  the  premises  as  tenants  in  common,  and  that  upon  his 
decease  an  undivided  one-half  of  tlte  premises  descended  to  them. 
The  defendants  demurred  to  the  bill,  and  the  trial  court  made  an  or- 
der overruling  it,  arid  they  have  appealed  from  that  order. 

Davis  Pegg  conveyed  an  undivided  one-half  interest  in  said  prem- 
ises to  complainant.  He  retained  an  undivided  one-half  interest  there- 
in. After  this  was  done  they  had  distinct  titles,  and  were  therefore 
tenants  in  common.  The  title  remained  that  way  until  Davis  Pegg 
died.  The  question  is,  then:  What  became  of  his  undivided  half? 
Ordinarily  it  would  descend  to  his  heirs,  the  defendants ;    and  it  did 

5  2  See  Hetzel  v.  Lincoln,  216  Pa.  60,  64  Atl.  866  (1906),  Tvhere  the  convey- 
ance was  to  a  man  and  woman,  by  name,  "jointly,"  the  grantees  being  in  fact 
husband  and  wife. 

In  iMoriis  v.  McCarty,  158  Mass.  11,  32  N.  E.  938  (1S93),  lands  were  conveyed 
to  A.  and  B.,  wife  of  A.,  "as  tenants  by  the  entirety  aud  not  as  tenants  in  com- 
mon." A.  and  B.  were  not  in  fact  husband  and  wife.  The  case  arose  upon  a 
writ  of  entry  by  the  heirs  of  B.  against  A.  to  recover  an  undivided  one-half  of 
the  premises. 


Ch.  5)  ESTATES  CREATED  699 

SO  descend,  unless  the  clause  wliich  was  inserted  carried  it  in  a  dif- 
ferent direction.  Complainant  contends  that  it  did  not  so  descend, 
because  she  and  her  husband  owned  the  premises  as  tenants  by  the 
entirety,  and  were  made  such  by  said  deed,  and  that  now,  as  survivor 
of  her  husband,  she  is  entitled  to  the  whole  of  said  premises. 

In  order  to  own  the  whole,  as  survivor,  she  would  have  to  be  seised 
of  the  whole  before  his  death.  Whatever  vested  in  her  as  survivor 
must  have  been  owned  by  both  her  and  her  husband  before  his  death, 
and  each  must  have  been  seised  of  the  whole.  As  neither  one  was 
seised  of  the  whole,  but  both  held  by  distinct  titles,  they  could  not  have 
been  tenants  by  the  entirety.  Neither  were  they  tenants  by  entirety 
of  the  undivided  half  conveyed  to  her,  because  Davis  Pegg  reserved 
no  interest  in  the  undivided  half  he  conveyed  to  complainant.  The 
deed  as  a.  whole  cannot  be  construed  as  creating  a  tenancy  by  entirety, 
because  the  law  was  not  followed  in  creating  it.  At  the  common  law, 
tlie  unities  of  time,  title,  interest,  and  possession  had  to  be  observed 
in  creating  such  an  estate.  Blackstone's  Commentaries,  book  2,  p. 
182;  1  Washburn  on  Real  Property  (6th  Ed.)  p.  529.  See  suggestion 
in  Bassett  v.  Budlong,  77  Mich.  338,  43  N.  W.  984,  18  Am.  St.  Rep. 
404. 

The  common  law  has  remained  unchanged  in  this  respect  and  is 
now  in  force.  In  the  attempt  to  create  an  estate  by  entirety,  in  the 
case  under  consideration,  neither  the  unity  of  time  nor  title  was  ob- 
served. The  estate  was  not  created  by  one  and  the  same  act,  neither  did 
it. vest  in  them  at  one  and  the  same  time.  If  the  clause  inserted  can  be 
said  to  be  a  part  of  the  habendum  of  the  deed,  as  is  argued,  then  that 
part  of  the  habendum  must  fail,  on  the  ground  that  it  seeks  to  en- 
large an  estate  in  common,  which  is  granted,  into  an  estate  of  entirety, 
without  complying  with  the  rules  of  law  for  the  creation  of  such  an 
estate.  By  reason  of  these  considerations,-  the  deed  must  be  read  as 
though  the  clause  had  been  omitted.  The  deed  created  a  tenancy  in 
common  between  complainant  and  her  husband,  and  upon  his  decease 
his  undivided  one-half  of  the  premises  descended  to  his  heirs. 

The  order  of  the  trial  court,  overruling  defendants'  demurrer,  will 
be  vacated  and  set  aside,  and  an  order  entered  sustaining  the  demur- 
rer. 

OstrandBr,  C.  J.,  and  Hooker,  Moore,  and  McAlvay,  JJ.,  con- 
curred in  the  result."^' 

33  William  Wright,  the  owripr  of  prpmises,  executed  a  deed  thereof  contain- 
ing the  following:  "Between  William  Wriglit,  of  the  township  of  North  Fhiins 
in  Ionia  connty  and  state  of  Michigan,  of  the  first  part,  and  William  Wright 
and  Elizabeth  Wright  [his  wife]  jointly,  the  survivor  to  have  full  ownership, 
of  the  same  place,  of  the  second  part."  William  died,  and  later  Elizabeth. 
"VMiat  were  the  rights  of  the  heirs  of  each?  Wright  v.  Knaiip,  l.s;{  Mich.  656,  150 
N.  W.  315  (101.5).  See.  also,  Michigan  State  Hank  of  l::aton  Rapids  v.  Kern 
dMich.)  155  N.  W.  502  (1015) ;   lu  re  Klatzl's  Estate  (N.  Y.)  110  N.  E.  ISl  (1915/. 


700  DERIVATIVE  TITLES  (Part  2 

VAN  HORNE  v.  FONDA. 
(Court  of  Chancery  of  New  York,  1821.     5  Johns.  Ch.  388.) 

The  ChanceIllor.''*  The  bill  seeks  to  call  the  defendant  to  an  ac- 
count, as  executor  of  the  estate  of  Jellis  Fonda,  deceased,  and,  also, 
as  executor  of  the  estate  of  Henry  V.  Fonda,  deceased,  and,  generally, 
to  make  him  account  as  trustee,  acting-  for  and  on  behalf  of  the  plain- 
tiffs, in  the  management  and  disposition  of  the  estate,  real  and  per- 
sonal, of  Henry  V.  Fonda. 

The  defendant  admits  himself  to  have  been  the  acting  executor  of 
the  estate  of  his  father,  Jellis  F.,  and  is  ready  to  account  for  the  per- 
sonal estate,  and  the  rents  and  profits  of  the  real  estate  which  he  may 
have  received.  The  great  contest  in  the  case  is  as  to  the  character  in 
which  he  acted,  and  the  responsibilities  which  he  has  incurred,  in  re- 
spect to  the  estate,  real  and  personal,  of  his  brother  Henry  V. 
p      *     *     * 

2.  The  bill  charges  that  the  defendant  received,  in  March,  1799, 
from  the  government  of  this  state  $6,500,  as  a  compensation  for  the 
extinguishment  of  the  right  derived  from  Jellis  F.  to  2,000  acres  of 
land  in  the  Royal  Grant,  and  that  the  plaintiffs  are  entitled  to  a  moiety 
of  that  sum,  with  interest.  The  defendant  adm.its  that  the  sum  re- 
ceived was  $6,250,  but  he  claims  title  to  the  whole  of  it ;  and  contends, 
in  the  first  place,  that  his  father,  Jellis  F.,  was  only  entitled,  in  his  life- 
time, to  1,000  acres,  inasmuch  as  Brant  Johnson,  who  sold  him  the 
2,000  acres,  owned  only  a  moiety  of  it,  and  that  the  other  moiety  be- 
longed to  William  Johnson,  a  brother  of  B.  Johnson.  He  contends,  in 
the  second  place,  that  his  brother  Henry,  by  his  deed  of  the  3d  of 
May,  1794,  conveyed  to  him  in  fee,  and  absolutely,  without  any  reser- 
vation or  trust,  his*  interest  in  the  1,000  acres,  for  the  consideration 
of  £100.,  and  which  consideration  was  paid  by  a  deed  from  the  defend- 
ant to  Henry,  of  the  date  of  the  24th  of  April,  1794,  of  two  lots  in 
the  Royal  Grant,  and  containing  the  like  consideration. 

It  is  to  be  observed,  as  we  proceed,  that  the  defendant  and  his  broth- 
er Henry  were  joint  and  equal  residuary  devisees  of  their  father,  JelHs 
Fonda. 

There  is  reason  to  believe  that  the  deed  of  the  24th  of  April,  was 
not  given  as  the  consideration  of  the  deed  of  the  3d  of  May  following. 
The  want  of  concurrence  in  dates  raises  that  presumption,  especially 
as  that  want  of  concurrence  is  left  without  any  explanation.  In  the 
next  place,  it  is  in  proof,  by  the  testimony  of  Simon  Veeder,  who 
took  the  acknowledgment  of  the  deed  of  the  3d  of  May,  and  delivered 
the  deed  over  to  the  defendant  on  the  same  day^  that  Henry  observed, 
at  the  time,  that  the  deed  to  Jellis  F.,  his  father,  was  deficient.  The 
certificate  of  acknowledgment  bears  date  the  31st  day  of  May,  1794,  but 

6*  The  statement  of  facts  is  omitted.  Portions  of  the  opinion  also  are  omit- 
ted. 


Ch.  5)  ESTATES   CREATED  701 

the  certificate  of  acknowledgment  of  the  prior  deed  of  the  24th  of 
April,  bears  date  the  2d  day  of  August,  1794,  and  both  the  acknowl- 
edgments were  made  before  the  same  judge.  The  defendant  was  pres- 
ent when  the  acknowledgment  of  the  deed  of  the  3d  of  May  was  taken ; 
and  when  the  deed  was  handed  to  him,  he  observed  that  the  considera- 
tion mentioned  in  tlie  deed  was  not  the  value  of  the  property,  but  he 
took  the  deed  in  order  to  save  something  for  the  children  of  his  brother, 
as  his  brother  was  pretty  much  involved  in  trouble. 

These  observations  of  tlie  parties,  made  at  the  time  of  the  execution 
of  the  deed,  are  evidence  that  the  deed  was  not  taken  as  an  absolute 
purchase  of  the  right  of  Henry  to  the  1,000  acres;  and  they  are  evi- 
dence that  it  was  taken  in  trust,  and,  probably,  with  a  view  to  facihtate 
a  compromise  with  the  state,  according  to  the  charge  in  the  bill.  The 
testimony  of  Evert  Yates  and  James  Lansing  shows  that  the  deed  of 
the  3d  of  May  was  not  considered  by  the  defendant  as  an  absolute 
purchase  of  the  right  of  Henry,  and  paid  for,  by  the  prior  deed  of  the 
24tli  of  April.  When  the  executors  of  Henry  met,  soon  after  his 
death,  the  defendant  told  John  Fonda,  who  asserted  Henry's  interest 
in  the  money  received  upon  the  compromise,  that  Henry  had  no  such 
interest,  for  his  father's  title  was  incomplete,  and  he  had  since  pur- 
chased up  the  Indian  title  of  William  Johnson,  and  considered  it  a  spec- 
ulation of  his  own.  Here  was  no  suggestion  that  he  had  actually 
bought  in  the  right  of  Henry,  a  reply  that  would  naturally  have  sug- 
gested itself,  if  such  had  been  the  fact. 

It  is  also  admitted,  by  the  answer,  that  the  title  of  Jellis  F.  to  the 
2,000  acres,  had  been  conveyed  by  him,  in  his  lifetime,  to  Abraham 
G.  Lansing;  and  that  as  the  title  proved  partly  defective,  the  defendant 
and  his  brother  Henry,  as  the  representatives  of  their  father,  had 
conveyed  to  Lansing,  in  1793,  other  lands  to  the  amount  of  2,650 
acres,  derived  to  them  from  their  father,  in  lieu  of  the  2,000  acres  ; 
and  that  Lansing  had  then  released  his  right  to  the  2,000  acres,  to  the 
defendant  and  Henry.  The  2,000  acres  were  thus  received  back  into 
the  funds  of  the  estate,  as  a  substitute  for  the  2,650  acres  which  had 
been  transferred ;  and  tlie  two  brothers  became  equally  entitled,  as 
tenants  in  common  and  residuary  devisees  of  Jellis  F.,  to  all  the  right 
and  interest,  in  law  and  equity,  of  their  ancestor  to  the  2,000  acres. 
The  defendant,  afterwards,  on  the  29th  of  May,  1795,  purchased  of 
Moses  Johnson,  the  heir  of  William  Johnson,  for  $600,  his  right  and 
title  to  1,000  acres,  being  part  and  parcel  of  2,000  acres  originally  pur- 
chased by  Jellis  F.  from  Brant  Johnson.  The  question,  then,  is,  wheth- 
er the  defendant  did  not  make  that  purchase  for  the  joint  benefit  of 
himself  and  his  brother  Henry.  If  the  deed  of  the  3d  May,  1794,  was 
given  to  the  defendant,  in  trust  for  the  purpose  of  facilitating  the  ac- 
quisition of  a  good  title,  then  the  purchase  from  Moses  Johnson  was 
in  trust  for  their  joint  benefit.  The  defendant  has  not  interposed  and 
pleaded  the  statute  of  frauds  against  setting  up  a  trust  by  parol,  in 
opposition  to  the  deed  of  the  3d  of  May,  1794;  and  we  are  left  at  lib- 


702  DERIVATIVE  TITLES  (Pait  2 

erty  to  judge  of  the  truth  and  effect  of  the  parol  proof.  I  am  strongly 
inclined  to  believe,  that  the  deed  was  taken  in  trust,  and  that  the  sub- 
sequent purchase  from  iMoses  Johnson  was  made  in  trust,  and  that 
Henry  was  equally  interested  in  the  settlement  made  with  the  state, 
in  March,  1799;  and  that  his  representatives  are  entitled  to  a  moiety 
of  the  payment  received  from  the  state,  (which  payment  amounted  to 
$6,500,)  after  allowing  to  the  defendant,  the  payment  he  made  to 
IMoses  J.,  and  a  just  indemnity  for  his  expenses  in  procuring  the  satis- 
faction from  the  state. 

In  some  cases,  says  Littleton,  (sec.  307,)  a  release  to  one  joint  tenant 
shall  aid  the  joint  tenant  to  whom  it  was  not  made,  as  well  as  him  to 
whom  it  was  made.  I  will  not  say,  however,  that  one  tenant  in  com- 
mon may  not,  in  any  case,  purchase  in  an  outstanding  title  for  his  ex- 
clusive benefit.  But  when  two  devisees  are  in  possession,  under  an 
imperfect  title,  derived  from  their  common  ancestor,  there  would  seem, 
naturally  and  equitably,  to  arise  an  obligation  between  them,  resulting 
from  their  joint  claim  and  community  of  interests,  that  one  of  them 
should  not  affect  the  claim,  to  the  prejudice  of  the  other.  It  is  like 
an  expense  laid  out  upon  a  common  subject,  by  one  of  the  owners,  in 
which  case  all  are  entitled  to  the  common  benefit,  on  bearing  a  due 
proportion  of  the  expense.  It  is  not  consistent  with  good  faith,  nor 
with  the  duty  which  the  connection  of  the  parties,  as  claimants  of  a 
common  subject,  created,  that  one  of  them  should  be  able,  without  the 
consent  of  the  other,  to  buy  in  an  outstanding  title,  and  appropriate 
the  whole  subject  to  himself,  and  thus  undermine  and  oust  his  com- 
panion. It  would  be  repugnant  to  a  sense  of  refined  and  accurate  jus- 
tice. It  would  be  immoral,  because  it  would  be  against  the  reciprocal 
obligation  to  do  nothing  to  the  prejudice  of  each  other's  equal  claim, 
which  the  relationship  of  the  parties,  as  joint  devisees,  created.  Com- 
munity of  interest  produces  a  community  of  duty,  and  there  is  no  real 
difference,  on  the  ground  of  policy  and  justice,  whether  one  co-tenant 
buys  up  an  outstanding  incumbrance,  or  an  adverse  title,  to  disseise 
and  expel  his  co-tenant.  It  cannot  be  tolerated,  when  applied  to  a 
common  subject,  in  which  the  parties  had  equal  concern,  and  which 
created  a  mutual  obligation,  to  deal  candidly  and  benevolently  with 
each  other,  and  to  cause  no  harm  to  their  joint  interest.  I  have  no 
doubt,  therefore,  that  in  a  case  like  the  present,  and  assuming  what 
the  evidence  warrants  us  to  assume,  that  the  deed  of  May,  1794,  was 
taken  by  the  defendant  for  trust  purposes,  that  the  purchase  from 
Moses  Johnson  ought,  in  equity,  to  enure  for  the  common  benefit,  sub- 
ject to  an  equal  contribution  to  the  expense.""     *     *     * 

55  See  Matthews  v.  Bliss,  22  Pick.  (Mass.)  48  (1839) ;  Kennedy  v,  De  Trafford, 
[1897J  A.  C.  ISO,  where  under  a  power  of  sale  in  a  mortgage  the  mortgaged 
premises  were  sold  to  one  of  the  two  tenants  in  common  who  had  mortgaged 
the  premises.  Lord  Hers&hell  said:  "But  then  it  is  said  that  the  mere  fact 
that  Kennedy  was  co-owner  with  Dodson  of  this  property  creates  such  a  rela- 
tionship between  them  that  the  one  co-owner  could  not  take  this  property  and 
hold  it  for  himself,  but  that  the  other  co-owner  is  entitled  on  equitable  grounds 


Ch.  5}  '  ESTATES  CREATED  703 

ELSTON  V.  PIGGOTT. 

(Supreme  Court  of  Indiana,  1883.    94  Ind.  14.) 

Elliott,  J.^®  *  *  *  'pj^g  question  which  next  demands  con- 
sideration may  be  tlius  stated :  Is  one  who  brings  a  partition  suit, 
holding,  at  the  time,  a  deed  from  an  assignee  in  bankruptcy  conveying 
two-thirds  of  the  land,  and  holding,  also,  a  certificate  issued  upon  a 
sale  on  a  decree  of  foreclosure  embracing  all  the  land,  estopped  by  a 
decree  rendered  in  the  partition  suit,  awarding  to  him  two-thirds  of  the 
land  and  to  the  defendant  one-third  from  asserting  the  title  subse- 
quently acquired  by  a  deed  excepted  pursuant  to  the  certificate  of  sale. 

The  right  conferred  on  the  holder  of  the  certificate  of  sale  was  not 
a  title  to  the  land ;  it  merely  invested  him  with  a  lien  on  the  land,  which 
might  ripen  into  a  title  by  the  failure  of  the  debtors  to  redeem  the  land 
within  tlie  time  prescribed  by  law.  State  ex  rel.  v.  Sherill,  34  Ind.  ^7 ; 
Davis  V.  Langsdale,  41  Ind.  399;  Hasselman  v.  Lowe,  70  Ind.  414; 
Felton  V.  Smith,  84  Ind.  485 ;  Wilhite  v.  Hamrick,  92  Ind.  594.  When 
the  partition  suit  was  commenced,  the  plaintiff  in  that  suit  was  not  the 
owner  of  all  the  land,  but  was  the  owner  of  two-thirds,  which  was 
properly  set  oflf  to  him.  The  title  which  he  acquired  to  all  the  land 
was  a  subsequent  one. 

It  is  settled  that  a  decree  in  partition  operates  only  upon  the  title 
held  at  the  time  the  suit  was  instituted,  and  has,  ordinarily,  no  effect 
upon  a  title  subsequently  acquired.  Miller  v.  Noble,  86  Ind.  ^27  ;  Crane 
V.  Kimmer,  77  Ind.  215;  Avery  v.  Akins,  74  Ind.  283,  see  page  290; 
Arnold  v.  Cutterbaugh,  92  Ind.  403. 

A  decree  in  partition  does  not  create  title ;  it  merely  severs  possession 
and  awards  to  each  tenant  his  share  in  severalty.  Kenney  v.  Phillipy, 
91  Ind.  511;  Miller  v.  Noble,  supra ;  Utterback  v.  Terhune,  75  Ind.  363 ; 
Teter  v.  Clayton,  71  Ind.  237;  Avery  v.  Akins,  supra. 

It  results  from  these  settled  rules  that  the  decree  in  partition. does 
not  estop  the  appellant  from  asserting  tlie  title  acquired  under  the  deed 
issued  on  the  decree  of  foreclosure. 

The  title  which  a  plaintiff  is  ordinarily  required  to  set  forth  in  the 

to  have  it  declared  that  the  benefit  of  one  linlf  of  that  purchase  should  be  his. 
My  Lords,  DO  authority  has  been  cited  in  support  of  such  a  proposition.  *  *  * 
Tlie  only  authority,  if  it  can  be  so  called,  which  has  been  cited  is  the  case  be- 
fore Chancellor  Ivent  [Van  Home  v.  Fonda.  5  Johns.  Ch.  (N.  Y.)  .388  (1821)]: 
but  he  connuences  his  ol'servatiotis  by  saying  tliat  he  is  not  soinp  to  lay  down 
a  general  rule  which  would  be  applicable  to  such  a  case  as  this.  lie  deals  with 
tbe  jiarticular  case,  the  circunisrances  of  which  were  peculiar  and  of  iuiinense 
complication,  and  he  certainly  does  not  lay  down  any  rule  or  doctrine  of  law 
which  supports  tbe  argument  which  has  been  addressed  to  your  Lordships.  It 
is  not  necessary  to  enter  into  the  details  of  that  c:ise.  It  is  enough  to  say  that, 
even  if  it  is  to  be  taken  as  enunciating  a  rule  of  law  which  would  be  as  ap- 
plicable in  this  country  as  in  Amenca,  it  does  not  enunciate  any  rule  of  law 
which  would  be  sufficient  for  the  api)ellant  in  this  case." 

Cf.  Holmes  v.  Holmes,  129  Mich.  412,  89  N.  \V.  47,  95  Am.  St.  Rep.  444  (1902). 

5  6  Parts  of  the  opinion  are  omitted. 


704  DERIVATIVE  TITLES  (Part  2 

complaint  in  partition  is  such  as  will  enable  him  to  secure  the  decree 
of  partition  demanded  in  his  complaint.  It  is  not  incumbent  upon  him 
to  make  an  issue  settling  all  questions  of  title,  or  all  rights  of  lien 
holders,  although  it  is  proper  for  him  to  do  so.  If  the  appellees  had 
desired  to  settle  all  questions  in  the  partition  suit,  they  might,  doubt- 
less, have  done  so,  by  tendering  proper  issues ;  but  they  chose  to  go  to 
trial  on  the  single  question  of  the  right  of  Elston  to  a  decree  of  par- 
tition, awarding  him  two-thirds  of  the  land,  and  tendered  no  issue 
as  to  his  right  as  the  holder  of  the  certificate,  issued  upon  the  sale  made 
on  the  decree  of  foreclosure.  Nothing  more  was  embraced  in  the  is- 
sues in  the  partition  suit  than  Elston's  right  to  the  two-thirds  of  the 
land,  and  this  was  all  that  was  adjudicated.  It  was,  indeed,  all  that 
could  have  been  properly  adjudicated  under  the  issues,  for  only  a 
claim  to  two-tliirds  of  the  land  was  then  asserted. 

The  application  of  these  legal  principles  secures  a  just  result  in 
the  present  instance.  Mrs.  Piggott  had  joined  her  husband  in  execut- 
ing the  mortgage  sued  on  in  the  United  States  court,  was  a  party  to 
the  suit  to  foreclose  that  mortgage,  and  was,  of  course,  chargeable 
with  knowledge  that  the  decree  covered  all  the  land,  that  it  was  un- 
satisfied when  the  partition  suit  was  brought,  and  that  the  time  for 
redemption  had  not  then  expired.  She  could  not,  therefore,  have  any 
reason  for  inferring  that  Elston  was  asserting  a  title  founded  on  the 
decree,  since  that  would  have  been  a  title  to  the  whole,  and  not  merely 
two-thirds,  of  the  land.  She  had  full  knowledge  of  the  extent  of  the 
title  he  asserted,  and  must  have  known  that  it  embraced  only  her  hus- 
band's interest,  and  was  founded  on  the  sale  made  by  the  assignee 
of  her  husband,  under  the  order  of  the  Federal  court  in  the  bankruptcy 
proceedings. 

The  question  which  is  next  encountered  may  be  thus  stated :  Does 
the  fact  that  the  appellant,  at  the  time  he  acquired  the  certificate  of 
sale  issued  on  the  decree  of  foreclosure  rendered  on  the  mortgage 
executed  by  Albert  Piggott,  the  husband,  and  Martha  J.  Piggott,  the 
wife,  held  a  conveyance  for  two-thirds  of  the  land  from  the  assignee 
in  bankruptcy  of  Albert,  the  husband,  executed  after  the  sale  on  the 
decree,  preclude  him,  the  appellant,  from  asserting  against  Martha 
J.,  the  wife,  the  title  founded  on  the  deed  executed  upon  the  fore- 
closure sale? 

Appellee's  counsel  contend  that  the  appellant  is  precluded  from  as- 
serting title  under  the  foreclosure  sale,  because  he  was,  as  they  affirm, 
a  tenant  in  common  with  Martha  J.  Piggott,  and  could  not,  therefore, 
buy  in  an  outstanding  lien  and  build  a  title  on  it.  The  general  rule 
unquestionably  is,  that  one  tenant  in  common  can  not,  by  purchasing 
an  outstanding  lien,  acquire  a  title  which  will  evict  his  co-tenant.  This 
rule,  however,  is  subject  to  many  exceptions  and  obtains  only  where 
the  relation  of  tenants  in  common  exists  in  strictness,  and  where  the 
relation  is  such  as  to  require  mutual  trust  and  confidence.  It  is  im- 
possible to  perceive  how  one  who  buys  at  a  sale  made  by  an  assignee 


Ch.  5)  ESTATES   CREATED  705 

in  bankruptcy  of  the  husband's  interest  becomes  charged  in  such  a  case 
as  that  embraced  in  our  general  question,  with  duties  of  trust  and  confi- 
dence to  the  wife  of  the  bankrupt.  The  title  is  not  a  common  one ; 
the  interests  are  not  reciprocal,  and  there  is  no  fiduciary  relationship 
created.  The  title  is  secured  by  virtue  of  a  judicial  sale,  and  not  by 
the  same  instrument,  nor  from  the  same  source,  as  that  from  which 
the  wife's  claim  is  derived.  There  is,  we  repeat,  nothing  in  such  a 
case  to  create  relations  of  trust  and  confidence,  and,  therefore,  the 
reason  of  the  rule  applicable  to  ordinary  cases  fails,  and  the  time-hon- 
ored doctrine  is,  that  where  the  reason  of  the  rule  ceases  so  does  the 
rule  itself.  An  examination  of  the  cases  will  show  that  we  are  right 
in  stating  that  the  reason  of  the  rule  is  that  the  relationship  is  one  im- 
posing trust  and  confidence  and  requiring  the  tenants  not  to  assume 
positions  of  hostility.    Mr.  Freeman  says : 

"If  their  interests  accrue  at  different  times,  and  under  different  in- 
struments, and  neither  has  superior  means  of  information  respecting* 
the  state  of  the  title,  then  either,  unless  he  employs  his  cotenancy  to 
secure  an  advantage,  may  acquire  and  assert  a  superior  outstanding 
title,  especially  where  the  cotenants  are  not  in  joint  possession  of  the 
premises."  Freeman,  Cotenancy  &  Part.  §  155;  Roberts  v.  Thorn,  25 
Tex.  728,  78  Am.  Dec.  552 ;  Rippetoe  v.  Dwyer,  49  Tex.  498 ;  King  v. 
Rowan,  10  Heisk.  (Tenn.)  675 ;  Matthews  v.  Bliss,  22  Pick.  (Mass.)  48;. 
Frentz  v.  Klotsch,  28  Wis.  312;  Reinboth  v.  Zerbe,  etc.,  Co.,  29  Pa. 
139;  Brittin  v.  Handy,  20  Ark.  381,  7Z  Am.  Dec.  497. 

It  is  not  to  be  forgotten  that  the  wife  was  bound  both  by  the  decree 
and  the  mortgage,  and  the  case  is,  therefore,  altogether  different  from 
one  where  the  lien  is  created  by  the  act  of  the  law,  as  for  taxes,  or 
where  the  encumbrance  was  created  by  a  former  owner  through  whom 
both  parties  claim  title.  In  such  cases  the  burden  is  a  common  one. 
In  the  present  case  the  burden  rests  alone  on  one  of  the  tenants. 
This  is  so  by  virtue  of  her  own  act  creating  it,  and  by  force  of  the 
decree  directing  the  execution  of  the  lien  by  sale  of  the  property. 
Here,  then,  we  find  an  essential  element  not  found  in  cases  to  which 
the  general  rule  is  ordinarily  applied. 

The  wife,  as  against  the  mortgagee,  owned  a  mere  equity  of  redemp- 
tion. Kissel  v.  Eaton,  64  Ind.  248;  Haggerty  v.  Byrne,  75  Ind.  499; 
Eiceman  v.  Finch,  79  Ind.  511;  Baker  v.  McCune,  82  Ind.  585;  Ver- 
million V.  Nelson,  87  Ind.  194.  This  equity  of  redemption  had  been 
barred  by  the  decree  of  foreclosure,  so  that  nothing  remained  except 
the  statutory  right  of  redemption.  Eiceman  v.  Finch,  supra.  This 
right  was  one  to  be  exercised  pursuant  to  law,  and  the  failure  to  ex- 
ercise it  made  the  title  absolute  upon  the  execution  of  the  sheriff's 
deed.  Something  more  than  a  mere  mortgage  lien  was,  therefore, 
bought  by  the  appellant,  and  he  did  not  buy  it  by  virtue  of  his  position 
as  a  cotenant,  nor  did  his  cotenancy  give  him  superior  means  of  knowl- 
edge. No  one  could  have  had  greater  knowledge  than  Mrs.  Piggott, 
Aig.Peop. — 45 


706  DERIVATIVE  TITLES  (Part  2 

by  whom  the  mortgage  was  executed,  and  against  whom  the  decree  of 
foreclosure  was  rendered.  Here,  again,  emerges  an  element  pushing 
the  case  outside  of  the  general  rule. 

There  was,  as  already  intimated,  no  obligation  resting  on  the  ap- 
pellant to  discharge  the  lien,  for  that  obligation  rested  on  the  mortga- 
gors. This  obligation  did  not  arise  from  the  relationship  of  the  par- 
ties, because  the  burden  was  not  a  common  one,  nor  was  there  trust 
or  confidence.  There  was,  therefore,  nothing  which,  in  law  or  equity, 
imposed  a  duty  on  the  appellant  to  pay  off  the  mortgage  and  then  sue 
for  contribution.  As  no  duty  rested  on  him,  and  as  he  did  not  avail 
himself  of  knowledge  or  opportunity  supplied  by  his  cotenancy,  he  was 
as  free  to  buy  as  anybody  else.  The  failure  to  redeem  ensured  the 
loss  of  the  property  to  Mrs.  Piggott,  and  whether  the  judgment  plain- 
tiff or  his  assignee,  the  appellant,  gets  the  title,  can  really  make  no  dif- 
ference to  her,  for  the  loss  is  in  either  case  precisely  the  same.  Her 
Opportunities  for  knowledge  and  for  action  were  just  the  same  against 
the  appellant  as  against  his  assignor;  she  had  just  as  much  right  to  re- 
deem from  the  one  as  from  the  other. 

We  are  well  satisfied  that  this  case  is  not  within  the  general  rule 
forbidding  one  tenant  in  common  from  buying  an  outstanding  lien  and 
building  title  upon  it,  and  that  the  case  assumed  in  our  question  is  the 
one  made  by  the  record. ^^     *     *     * 


HURLEY  v.  HURLEY. 

(Supreme  Judicial  Court  of  Massncliusetts,  1SS9.     148  Mass.  444,  19  N.  E.  545, 

2  L.  R.  A.  172.) 

Holmes,  J.  This  is  a  petition  for  partition.  In  1870  the  petitioner, 
Thomas  Hurley,  inherited  one  undivided  half  of  the  premises  from 
his  mother,  subject  to  his  father's  tenancy  by  the  curtesy.  On  No- 
vember 14,  1879,  the  father  died,  and  the  other  half,  which  had  be- 
longed to  him  under  a  separate  conveyance,  descended  to  the  peti- 
tioner and  the  respondents,  two  sons  of  the  father  by  a  later  wife. 
On  September  8,  1879,  before  the  father's  death,  the  premises  were 
sold  for  taxes  to  one  Capen.  On  December  6,  1880,  the  respondent 
Daniel  T.  Hurley  paid  Capen  the  amount  necessary  to  redeem  the 
premises,  and  took  a  release  from  him.     At  that  time  the  respond- 

5  7  Bracken  v.  Cooper,  SO  111.  221  (1875).  contra. 

In  Kirkpatrick  v.  Mathiot,  4  Watts  &  S.  (Pa.)  251  (1S42),  one  tenant  in  com- 
mon purchased  the  land  from  the  county  in  which  title  had  been  vested  by 
reason  of  failure  to  pay  taxes,  after  the  time  allowed  for  redemption  had  gone 
by.  The  tenant  in  common  so  purchasing  was  held  entitled  to  said  land  as 
again.st  another  tenant  in  common  who  offered  to  contribute  to  the  redemption 
cost.  But  compare  Oliver  v.  Hedderly,  32  Minn.  455,  21  N.  W.  478  (1SS4), 
where  the  cotenant  who  purchased  from  the  purchaser  at  foreclosure  sale,  after 
the  time  for  redemption  had  gone  by,  had  made  arrangements  for  such  trans- 
action with  the  mortga:;ee  before  the  foreclosure. 


Ch.  5)  ESTATES   CREATED  •  707 

ent's  mother  was  in  possession.  In  the  spring  of  1882,  Daniel  T. 
Hurley  took  possession;  the  petitioner  has  never  ottered  to  repaj 
any  part  of  the  sum  paid  to  Capen ;  and  the  question  raised  by  the 
exceptions  is  whether  Capen's  deed  to  him  is  a  bar  to  this  petition. 

There  has  been  some  uncertainty  as  to  the  extent  and  grounds 
of  the  principle  that  a  purchase  of  a  tax  title  by  one  tenant  in  com- 
mon inures  for  the  benefit  of  all.  Frentz  v.  Klotsch,  28  Wis.  312,, 
318;  Insurance  Co.  v.  Bulte,  45  Mich.  113,  120,  7  N.  W.  707;  Roth- 
well  V.  Dewees,  2  Black,  613,  618,  17  L.  Ed.  309.  Some  cases  dwell 
principally  on  the  existence  of  a  fiduciary  relation,  (Lloyd  v.  Lynch,  28 
Pa.  419,  424,  70  Am.  Dec.  137;  Van  Home  v.  Fonda,  5  Johns.  Ch. 
(N.  Y.)  388,  407;  Flinn  v.  McKinley,  44  Iowa,  68;  Weare  v.  Van 
Meter,  42  Iowa,  128,  20  Am.  Rep.  616;  Venable  v.  Beauchamp,  3 
Dana  (Ky.)  321,  324,  28  Am.  Dec.  74;)  while  others  put  the  proposition 
in  the  narrower  form,  that  a  tenant  in  common  cannot  take  advantage 
of  a  title  created  by  his  own  default  as  against  his  co-tenant,  (Cho- 
teau  V.  Jones,  11  Ih.  300,  322,  50  Am.  Dec.  460;  Voris  v.  Thomas, 
12  111.  442;  Dubois  v.  Campau,  24  Mich.  360,  368;  Lacey  v.  Davis, 
4  Mich.  140,  152,  66  Am.  Dec.  524;  Downer  v.  Smith,  38  Vt.  464, 
468.  See  Piatt  v.  St.  Clair,  6  Ohio,  227 ;  Bernal  v.  Lynch,  36  Cal. 
135,  146;  Carithers  v.  Weaver,  7  Kan.  110.)  Undoubtedly,  as  is  said 
by  Dixon,  C.  ].,  dissenting,  in  Smith  v.  Lewis,  20  Wis.  350,  356,  it  will 
be  found  in  most  of  the  cases  that  the  party  setting  up  the  tax  title 
was  under  an  obligation  to  pay  the  taxes. 

It  has  been  held  that  a  tenant  in  common  could  purchase  a  tax  title 
from  a  stranger  after  the  period  of  redemption  had  expired,  and  hold 
it  for  his  own  benefit,  (Reinboth  v.  Improvement  Co.,  29  Pa.  St. 
139 ;  Keele  v.  Cunningham,  2  Heisk.  (Tenn.)  288 ;  W^atkins  v.  Eaton, 
30  Me.  529,  536,  50  Am.  Dec.  637;  Coleman  v.  Coleman,  3  Dana  (Ky.) 
398,  403,  28  Am.  Dec.  86;)  and  in  diis  commonwealth  it  is  decided 
that  he  may  take  an  assignment  of  a  paramount  mortgage,  and  rely 
on  it  to  defeat  a  petition  for  partition,  (Blodgett  v.  Hildreth,  8  AUen, 
186.)  On  the  other  hand,  it  has  been  held  that  a  purchase  of  a  tax 
certificate  before  the  period  of  redemption  has  expired,  by  one  wha 
is  not  a  tenant  in  common  at  the  time,  will  inure  to  the  benefit  of  the 
other  tenants  in  common,  if  he  becomes  such  before  he  gets  the  tax 
deed.  Flinn  v.  McKinley,  44  Iowa,  68;  Tice  v.  Derby,  59  Iowa,  312, 
314,  13  N.  W.  301.  Compare  Sneed  v.  Atherton,  6  Dana,  276,  279, 
32  Am.  Dec.  70. 

There  are  strong  grounds  for  saying  that  there  were  no  special 
fiduciary  relations  between  the  petitioner  and  the  defendant  in  this  case. 
Their  titles  were  in  part  derived  from  different  sources.  Frentz  v. 
Klotsch,  28  Wis.  312,  318.  According  to  the  bill  of  exceptions,  the 
defendant  was  not  in  possession  when  he  took  the  tax  deed,  (Wright  v. 
Sperry,  21  Wis.  331,  337,)  and  he  had  no  interest  in  the  premises  when 
the  tax  was  assessed,  or  until  after  they  were  sold,  while  the  peti- 
tioner  owned  or>e-half,   subject  to   his   father's  tenancy  by  the   cur- 


708  •  DERIVATIVE  TITLES  (Part  2 

tesy.  It  is  at  least  consistent  with  the  facts  stated  to  assume  that 
the  petitioner  was  not  relying  on  the  respondent  in  any  way.  See 
j\Iatthews  v.  Bliss,  22  Pick.  48,  52.  Again,  it  would  be  pressing  the 
notion  of  default  very  far  to  say  that,  although  the  defendant  was 
a  stranger  to  the  estate  at  the  time  of  the  sale,  yet,  since  he  might 
have  redeemed,  he  could  not  found  a  title  on  his  failure  to  do  so.  But 
it  is  unnecessary  to  decide  what  would  have  been  the  effect  if  the  de- 
fendant had  taken  a  conveyance  of  the  tax  title  to  a  third  person,  and 
had  given  the  transaction  the  form  of  an  assignment ;  for,  whether  the 
defendant  had  a  right  to  take  an  assignment  or  not,  he  certainly  had 
a,  right  to  redeem  and  pay  off  the  incumbrance.  Pub.  St.  c.  12,  §  49. 
See  Coughlin  v.  Gray,  131  Mass.  56,  58;  Langley  v.  Chapin,  134 
Mass.  82;  Coxe  v.  Wolcott,  27  Pa.  154.  Which  of  the  two  transac- 
tions took  place  may  be  a  question  for  the  jury,  under  some  circum- 
stances. Coxe  V.  Wolcott,  ubi  supra.  But,  as  was  said  in  Watkins  v. 
Eaton,  30  Me.  529,  534,  50  Am.  Dec.  637,  a  case  very  similar  in 
principle  to  the  one  at  bar,  "when  a  part  owner  obtains  a  conveyance 
of  his  own  share,  and  the  share  or  shares  of  co-tenants,  by  payment 
of  the  precise  amount  required  to  redeem  them,  he  must  be  presumed, 
in  the  absence  of  all  rebutting  testimony,  to  have  done  so  in  the  exercise 
of  a  legal  right;  and  in  such  case  the  whole  so  conveyed  will  be  re- 
deemed from  the  sale."  See  Sherwin  v.  Bank,  137  Mass.  444,  449. 
It  is  plain,  on  the  face  of  the  deed  accepted  by  the  defendant  Daniel  T. 
Hurley,  that  he  redeemed  the  premises  in  the  exerciseof  his  legal  right 
so  to  do ;  and  it  follows  that  the  lien  of  the  tax  sale  was  discharged, 
in  such  a  sense  that  it  could  not  ripen  into  a  legal  title  as  against  his 
co-tenants,  except  upon  their  refusal  or  neglect  to  pay  their  share. 
Watkins  v,  Eaton  and  Weare  v.  Van  Meter,  ubi  supra. 

Then  the  question  arises  whether,  as  the  respondent  has  paid  the  tax, 
and  has  not  taken  the  steps  to  assert  and  preserve  his  lien  prescribed 
by  Pub.  St.  c.  12,  §§  63,  64,  65,  his  rights  are  not  gone  altogether.  But 
we  think  that  it  would  be  too  harsh  a  construction  of  those  sections 
to  hold  that  they  apply  to  a  redemption  of  the  premises  after  a  sale, 
when  the  tenant  takes  a  deed  which  is  put  on  record.  We  interpret 
the  statute  as  intended  to  apply  to  a  payment  in  the  first  instance, 
when,  unless  a  certificate  is  filed  as  provided,  there  will  be  noth- 
ing in  the  registry  to  show  the  tenant's  claim,  and  when  no  other 
statutory  mode  of  divesting  the  title  of  his  co-tenants  has  been  set  in 
motion. 

We  are  of  opinion  that,  although  the  tax  is  legally  paid,  as  we  have 
said,  yet  the  respondent  Daniel  Hurley  is  entitled  to  have  the  lien 
kept  alive  for  his  benefit  until  the  petitioner  shall  have  paid  his  share. 
Until  that  time,  the  petitioner  has  no  right  to  the  possession  of  any 
part  of  the  land,  in  equity  or  at  law.  Watkins  v.  Eaton,  30  Me.  529, 
535,  50  Am.  Dec.  637.  See  McCabe  v.  Swap,  14  Allen,  188,  191 ;  Gib- 
son V.  Crehore,  3  Pick.  475,  5  Pick.  146,  150;  Popkin  v.  Bumstead,  8 
Mass.  491,  5  Am.  Dec.  113.     Therefore  the  petition  was  rightly  dis- 


Ch.  5)  ESTATES  CREATED  709 

missed.    Pub.  St.  c.  178,  §  3  ;  Blodgett  v.  Hildreth,  ubi  supra ;  Bradley 
V.  Fuller,  23  Pick.  1,  8;   Hunnewell  v.  Taylor,  6  Cush.  472;   Coughlin 
V.  Gray,  131  Mass.  57;  Husband  v.  Aldrich,  135  Mass.  317,  318. 
Exceptions  overruled. 


JACKSON  V.  BAIRD. 

(Supreme  Court  of  North  CaroUna,  1908.     148  N.  C.  29,  61  S.  E.  632, 19  L.  R.  A. 

[N.  S.]  .591.) 

Brown,  J.  It  is  admitted  that  Robert  Baird  was  the  owner  of  the 
land  in  controversy,  and  that  he  executed  a  deed  in  trust  to  secure 
$150  to  S.  H.  Reid,  trustee.  After  Robert  Baird's  death  the  land  was 
sold  by  the  trustee,  who  conveyed  it  to  Mrs.  Julia  D.  Shuford  for  a 
consideration  of  $286  by  deed  dated  May  26,  1898.  George  Shuford 
and  his  wife,  the  aforesaid  Julia,  conveyed  the  land  to  defendant 
Laura  Baird,  wife  of  defendant  John  Baird,  by  deed  dated  May  28, 
1898.  The  trustee's  deed  to  Mrs.  Shuford,  although  dated  May  26th, 
recites  that  the  sale  took  place  on  May  28th.  It  appears  that  Julia 
Baird  joined  in  the  execution  of  the  note  and  deed  in  trust  along  with 
Robert  Baird.  The  plaintiffs  allege  that  the  debt  was  contracted  for 
■John  Baird's  benefit.  The  defendants  deny  this,  and  aver  that  John 
Baird  signed  as  surety  for  his  father,  Robert  Baird.  The  evidence  of- 
fered upon  this  point  is  very  meager  and  tends  to  prove  that  the  money 
borrowed  was  used  in  building  a  house  upon  the  tract  of  land  in  con- 
troversy, which  belonged  to  Robert  Baird. 

This  case  was  presented  to  this  court  upon  the  theory  that  there  is 
evidence  that  Shuford  bought  in  the  property  in  trust  for  Baird,  and 
that  consequently,  as  Baird  is  a  tenant  in  common  with  plaintiffs,  the 
title  he  acquired,  whether  legal  or  equitable,  must  inure  to  the  joint 
benefit  of  all.  We  do  not  think  there  is  any  evidence  whatever  of  a 
fraudulent  combination  between  Shuford'  and  Baird  to  effect  a  secret 
sale  of  the  property  or  to  suppress  bidding,  although  the  testimony  of 
Judge  Shuford  may  possibly  be  susceptible  of  the  construction  that  he 
intended  the  property  for  Baird,  and  that  he  was  acting  in  his  interest. 
The  contention  of  plaintiffs  that  John  Baird  could  not  acquire  the 
exclusive  title  at  the  sale  is  founded  upon  a  misapprehension  of  the 
law.  The  general  rule  is  well  settled  that  one  co-tenant  cannot  pur- 
chase an  outstanding  title  or  incumbrance  affecting  the  common  estate 
for  his  own  exclusive  benefit  and  assert  such  right  against  his  co-ten- 
ants; but  that  rule  does  not  apply  under  the  facts  of  this  case.  The 
title  which  was  acquired  by  Shuford,  assuming  that  he  acquired  it  for 
Baird,  was  not  an  outstanding  title  adverse  to  the  title  of  Robert  Baird. 
It  was  the  title  of  Robert  Baird  himself,  the  common  ancestor  under 
whom  all  claimed,  and  the  sale  was  being  made  under  a  deed  executed 
by  such  ancestor  and  to  pay  his  debts,  which  was  an  incumbrance 
on  the  land  when  it  descended  to  plaintiffs  and  their  coheir. 


710  DERIVATIVE  TITLES  (Part  2 

It  is  held  in  the  state  that  one  co-tenant  lawfully  may  purchase  his 
co-tenants'  share  of  the  common  property  under  execution  sale  to  pay 
the  debt  of  such  co-tenant.  Likewise,  it  is  held  that  one  of  the  co- 
tenants  may  purchase  the  entire  property  at  a  sale  to  pay  the  com- 
mon ancestor's  debt.  Baird  v.  Baird's  Heirs,  21  N.  C.  536,  31  Am. 
Dec.  399.  In  that  case  Chief  Justice  Ruffin  says :  "It  is  a  very  com- 
mon case  that  one  brother  buys  at  sheriff's  sale  the  undivided  estate  of 
another  brother  in  descended  lands,  either  for  the  debt  of  the  ancestor, 
or  that  of  the  brother  himself  contracted  after  the  father's  death ;  and 
we  believe  the  legality  of  such  a  purchase  has  never  been  questioned." 
Again :  "It  is  not  the  duty  of  one  heir,  or  of  one  tenant  in  common  as 
such,  to  pay  the  debts  of  another  tenant  in  common,  *  *  *  nor 
to  refrain  from  buying  to  his  own  disadvantage,  more  than  it  is  the 
duty  of  any  other  person,  wholly  unconnected  with  them."  So  it  is 
said  by  Judge  Gaston  that  "a  tenant  in  common,  as  such,  is  not  a 
trustee  for  his  companion."    Saunders  v.  Gatlin,  21  N.  C.  92. 

It  is  likewise  held  in  England  that  there  is  no  fiduciary  relation 
existing  between  tenants  in  common,  as  such,  and  that  a  tenant  in  com- 
mon of  property  previously  mortgaged,  who  purchased  the  entire  prop- 
erty at  the  mortgage  sale,  was  entitled  to  hold  it  for  his  sole  benefit. 
This  is  an  interesting  case,  decided  by  the  House  of  Lords  and  Privy 
Council,  in  which  an  elaborate  opinion  is  delivered  by  Lord  Herschell 
and  concurred  in  by  the  other  Lord  Justices.  See,  also,  17  Am.  & 
Eng.  676,  and  cases  cited;  also.  Freeman,  Co-Tenancy,  §§  162-165; 
Blodgett  v.  Hildreth,  90  Mass.  (8  Allen)  186;  Sutton  v.  Jenkins  (at 
this  term) -147  N.  C.  11,  60  S.  E.  643. 

When  the  land  in  controversy  descended  upon  these  plaintiffs  and 
upon  their  coheir,  John  Baird,  it  was  incumbered  with  the  mortgage 
to  Reid  made  by  their  ancestor.  When  that  mortgage  was  foreclosed 
in  the  manner  allowed  b}''  law,  any  one  of  the  heirs  had  a  right  to  pur- 
chase the  entire  estate  to  protect  his  own  interest,  and  he  would  ac- 
quire the  title  discharged  of  any  trust  to  his  coheirs.  There  is  no 
evidence  that  John  Baird  agreed  to  purchase  for  the  benefit  of  the 
other  heirs,  or  endeavored  to  suppress  bidding,  or  practiced  any  other 
fraud  upon  his  co-tenants.  So  far  as  the  record  discloses,  the  sale 
appears  to  have  been  fairly  made  by  the  trustee,  and  it  was  open  to  the 
plaintiffs  -or  any  of  them  to  attend  and  purchase  if  they  so  desired. 

We  think  therefore  the  judgment  of  nonsuit  should  be  affirmed. 


Ch.  5)  ESTATES   CREATED  711 

PICO  V.  COLUMBET. 

(Supreme  Court  of  California,  1859.     12  Cal.  414,  73  Am.  Dec.  550.) 

This  was  an  action  by  one  tenant  in  common  against  his  co-tenant, 
who  is  in  the  sole  possession  of  tlie  premises,  to  recover  a  share  of  the 
profits  of  the  estate. 

In  the  Court  below,  the  defendant  demurred  to  the  complaint  of 
the  plaintiff,  upon  the  ground  that  "it  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action."  The  demurrer  was  overruled.  De- 
fendant excepted,  and  subsequently  answered.  This  Court  has  con- 
sidered the  question  of  the  sufficiency  of  tlie  complaint,  the  substance 
of  which  is  set  out  in  the  opinion  of  the  Court.  The  judgment  of  the 
Court  below  is,  that  the  bill  be  dismissed,  and  defendant  have  judg-- 
ment  for  his  costs.     Plaintiff  appealed  to  this  Court. 

Field,  J.,  delivered  the  opinion  of  the  Court — Terry,  C.  J.,  and 
Baldwin,  J.,  concurring. 

This  action  is  brought  by  one  tenant  in  common  against  his  co- 
tenant,  who  is  in  the  sole  possession  of  the  entire  premises,  to  recover 
a  share  of  the  profits  received  from  tlie  estate.  The  case  was  argued 
upon  the  demurrer  to  the  complaint,  which,  by  stipulation  of  the  par- 
ties, was  admitted  to  have  been  taken  on  the  ground  that  the  com- 
plaint does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
The  complaint  avers  a  tenancy  in  common  between  the  parties ;  the 
sole  and  exclusive  possession  of  the  premises  by  the  defendant;  the 
receipt  by  him  of  the  rents,  issues,  and  profits  thereof ;  a  demand  by 
the  plaintiff  of  an  account  of  the  same,  and  the  payment  of  his  share ; 
the  defendant's  refusal ;  and  that  the  rents,  issues,  and  profits  amount 
to  $84,000.  These  averments,  and  not  the  form  in  which  the  prayer 
for  judgment  is  couched,  must  determine  the  character  of  tlie  plead- 
ing. The  complaint  is  designated  a  bill  in  equity,  but  the  designation 
does  not  make  it  such.  There  are  no  special  circumstances  alleged 
which  withdraw  the  case  from  the  ordinary  remedies  at  law,  and  re- 
quire the  interposition  of  equity.  The  action  is  a  common  law  action 
of  account,  and,  viewed  in  this  light,  the  complaint  is  fatally  defective. 
It  does  not  aver  that  the  defendant  occupied  the  premises  upon  any 
agreement  with  the  plaintiff,  as  receiver  or  bailiff  of  his  share  of  the 
rents  and  profits.  It  is  essential  to  a  recovery  that  this  circumstance 
exist,  and  equally  essential  to  the  complaint  that  it  be  alleged.  By 
the  common  law,  one  tenant  in  common  has  no  remedy  against  the 
other  who  exclusively  occupies  the  premises  and  receives  the  entire 
profits,  unless  he  is  ousted  of  possession  when  ejectment  may  be 
brought,  or  unless  the  other  is  acting  as  bailiff  of  his  interest  by  agree- 
ment, when  the  action  of  account  will  lie.  The  reason  of  tlie  doctrine 
is  obvious.  Each  tenant  is  entitled  to  the  occupation  of  the  premises ; 
neither  can  exclude  the  other;  and  if  the  sole  occupation  by  one  co- 
tenant  could  render  him  liable  to  the  other,  it  would  be  in  the  power 


712  DERIVATIVE  TITLES  (Part  2 

of  the  latter,  by  voluntarily  remaining  out  of  possession,  to  keep  out 
his  companion  also,  except  upon  the  condition  of  the  payment  of  rent. 
"The  enjoyment  of  the  absolute  legal  right  of  one  co-tenant  would  thus 
often  be  dependent  upon  the  caprice  or  indolence  of  the  other.  1  Co. 
Lit.  200;   5  Bac.  Ab.'367;   Willes,  209. 

The  statutes  of  4  and  5  Anne,  16,  gave  a  right  of  action  to  one  joint 
tenant,  or  tenant  in  common,  against  tlie  other  as  bailiff,  who  received 
more  than  his  proportional  share  of  the  profits.  At  common  law,  the 
bailiff  was  answerable,  not  only  for  his  actual  receipts,  but  for  what 
he  might  have  made  from  the  property  without  willful  neglect,  (Co. 
Lit.  172,  a.  Willes,  210;)  but  as  bailiff  under  the  statute  of  Anne,  he 
was  responsible  only  for  what  he  received  beyond  his  proportionate 
share.  That  statute  only  applied  to  cases  where  one  tenant  in  com- 
mon received  from  a  third  person  money,  or  something  else,  to  which 
both  co-tenants  were  entitled  by  reason  of  their  co-tenancy,  and  re- 
tained more  than  his  just  share  according  to  the  proportion  of  his  in- 
terest. This  was  held  in  Henderson  v.  Eason,  Exch.  9  Eng.  Law  and 
Eq.  337.  In  that  case,  it  was  decided  that  if  one  of  two  tenants  in 
common  solely  occupies  land,  farms  it  at  his  own  cost,  and  takes  the 
produce  for  his  own  benefit,  his  co-tenant  cannot  maintain  an  action 
of  account  against  him  as  bailiff  for  having  received  more  than  his 
share  and  proportion. 

The  statute  of  Anne  has  never  been  adopted  in  this  State,  nor  have 
we  any  similar  statute.  The  case  at  bar  must  therefore  be  determined 
upon  the  principles  of  the  common  law.  By  them,  as  we  have  ob- 
served, the  action  cannot  be  maintained  against  the  occupying  tenant 
ufnless  he  is  by  agreement  a  manager  or  agent  of  his  co-tenant.  The 
occupation  by  him,  so  long  as  he  does  not  exclude  his  co-tenant,  is 
but  the  exercise  of  a  legal  right.  His  cultivation  and  improvements 
are  made  at  his  own  risk ;  if  they  result  in  loss,  he  cannot  call  upon 
his  co-tenant  for  contribution,  and  if  they  produce  a  profit,  his  co- 
tenant  is  not  entitled  to  share  in  them.  The  co-tenant  can  at  any  mo- 
ment enter  into  equal  enjoyment  of  his  possession :  his  neglect  to  do 
so  may  be  regarded  as  an  assent  to  the  sole  occupation  of  the  other. 

On  this  point,  the  observations  of  Baron  Parke  in  Henderson  v. 
Eason  are  pertinent,  although  that  case  arose  under  the  statute  of 
Anne :  "There  are  obviously  many  cases,"  says  the  Justice,  "in  which 
a  tenant  in  common  may  occupy  and  enjoy  the  land  or  other  subject 
of  tenancy  in  common  solely,  and  have  all  the  advantage  to  be  derived 
from  it,  and  yet  it  would  be  most  unjust  to  make  him  pay  anything. 
For  instance,  if  a  dwelling-house  or  room  is  solely  occupied  by  one 
tenant  in  common  without  ousting  the  other,  or  a  chattel  is  used  by 
CMie  tenant  in  common,  and  nothing  is  received,  it  would  be  most  in- 
equitable to  hold  that  by  a  simple  act  of  occupation  or  user,  without  any 
agreement,  he  should  be  liable  to  pay  a  rent,  or  anything  in  the  nature 
of  a  compensation,  to  his  co-tenant  for  that  occupation,  to  which,  to 
the  full  extent  to  which  he  enjoyed,  he  had  a  perfect  right.     It  ap- 


Ch.  5)  ESTATES   CREATED  713 

pears  impossible  to  hold  such  a  case  to  be  within  the  statute,  and  an 
opinion  to  that  effect  was  expressed  by  Lord  Cottenham  in  McMahon 
V.  Burchell.  Such  cases  are  clearly  out  of  the  operation  of  the  stat- 
ute. Again,  there  are  many  cases  where  profits  are  made  and  are 
actually  taken  by  one  co-tenant,  yet  it  is  impossible  to  say  that  he  has 
received  more  than  comes  to  his  just  share.  For  instance,  if  one  ten- 
ant employs  his  capital  and  industry  in  cultivating  the  whole  of  the 
piece  of  land,  the  subject  of  the  tenancy,  in  a  mode  in  which  the  money 
and  labor  expended  greatly  exceeds  the  value  of  the  rent  or  compensa- 
tion for  the  mere  occupation  of  the  land,  in  raising  hops,  for  example, 
which  is  a  very  hazardous  adventure,  and  he  takes  the  whole  of  the 
crops,  is  he  to  be  accountable  for  any  of  the  profits  in  such  a  case, 
where  it  is  clear,  if  the  speculation  had  been  a  losing  one  altogether, 
he  could  not  have  called  for  a  moiety  of  the  loss,  as  he  would  have 
been  enabled  to  do  had  it  been  so  cultivated  by  the  mutual  agreement 
of  the  co-tenants?  The  risk  of  tlie  cultivation,  and  the  profits  and 
the  loss,  are  his  own,  and  what  is  just  with  respect  to  the  very  uncer- 
tain and  expensive  crop  of  hops,  is  also  just  with  respect  to  all  the 
produce  of  the  land,  the  fructus  industriales,  which  are  raised  by  the 
capital  and  industry  of  the  occupier,  and  cannot  exist  without  it.  In 
taking  all  the  produce,  he  cannot  be  said  to  receive  more  than  his 
just  share  and  proportion  to  which  he  is  entitled  as  tenant  in  common, 
as  he  receives  in  truth  the  remuneration  for  his  own  labor  and  capital,- 
to  which  a  tenant  has  no  right." 

The  American  cases  are  to  the  same  effect.  In  Sargent  v.  Parsons, 
12  Mass.  149,  the  Court  said :  "The  action  of  account  is  maintainable 
only  against  a  bailiff;  and  a  bailiff  can  only  be  one  who  is  appointed 
such,  or  who  is  made  such  by  the  law,  which  latter  instance  applies 
only  to  a  guardian,  who  is  bailiff  of  his  ward,  and  who  is  liable,  not 
only  for  rents  and  profits  actually  received,  but  also  for  those  which 
he  might  have  received  by  a  proper  management  of  the  estate.  One 
tenant  in  common  may,  by  contract,  make  another  his  bailiff  or  re- 
ceiver; and  if  he  does,  he  may  bring  him  to  account  in  this  form  of 
action ;  and  probably,  also,  to  avoid  a  process  considered  in  some  de- 
gree troublesome,  might  sue  him  in  indebitatus  assumpsit  as  on  a 
promise  to  account.  But  this  must  be  for  rents  and  profits  actually 
received  beyond  his  share ;  for,  by  the  common  law,  no  remedy  is 
given  for  a  mere  sole  use  and  occupation  by  one  of  the  tenants ;  for 
it  is  in  the  power  of  each  tenant  at  any  time  to  occupy ;  and  the  not 
doing  it  by  one  would  look  like  an  assent  that  the  other  should  occupy 
the  whole." 

In  Woolever  v.  Knapp,  18  Barb.  (N.  Y.)  265,  the  defendant  had  en- 
joyed the  sole  possession  of  a  farm  for  five  years,  the  rent  and  occupa- 
tion of  which  was  worth  two  hundred  dollars  a  year.  The  plaintiffs 
were  his  cotenants,  and  brought  their  action  of  account.  The  Court 
decided  that  the  action  could  not  be  sustained,  holding  that  one  tenant 
in  common  who  possesses  the  entire  premises,  without  any  agreement 


714  DERIVATIVE  TITLES  (Part  2 

with  his  co-tenants  as  to  his  possession,  or  any  demand  'on  their  part 
to  be  allowed  to  enjoy  the  same  with  him,  is  not  liable  to  account  in  an 
action  for  their  use  and  occupation.  See,  also.  Nelson's  Heirs  v.  Clay's 
Heirs,  7  J.  J.  Alarsh.  (Ky.)  139,  23  Am.  Dec.  3S7. 

We  have  treated  this  case  as  an  action  of  account  at  law,  but  to  the 
fame  result  we  should  come  if  the  proceeding  were  in  equity.  There 
is  no  equity  in  the  claim  asserted  by  the  plaintiff  to  share  in  profits 
resulting  from  the  labor  and  money  of  the  defendant,  when  he  has  ex- 
pended neither,  and  has  never  claimed  possession,  and  never  been  lia- 
ble for  contribution  in  cases  of  loss.  There  would  be  no  equity  in 
giving  to  the  plaintiff,  who  would  neither  work  himself,  or  subject 
himself  to  any  expenditures  or  risks,  a  share  in  tlie  fruits  of  another's 
labor,  investments,  and  risks. 

The  cases  to  which  our  attention  has  been  called,  in  which  equity 
has  sustained  an  account  in  favor  of  one  tenant  in  common,  out  of 
possession,  against  his  co-tenant  in  possession,  for  the  rents  and  profits, 
are,  with  some  exceptions  in  the  Court  of  Appeals  of  South  Carolina, 
those  in  which  the  account  was  a  collateral  incident  to  a  claim  for 
partition,  and  the  rents  and  profits  claimed  were  due  from  the  defend- 
ant as  a  tenant  of  the  plaintiff's  interest,  or  were  received  by  him  when 
they  belonged  to  both  parties,  or  were  the  proceeds  of  their  joint  labor 
and  expenditures.  Thus,  in  Pope  v.  Haskins,  16  Ala.  321,  the  defend- 
ant had  leased  of  the  complainant  his  undivided  one-third  interest  in  a 
lot  belonging  to  the  parties  as  tenants  in  common,  and  upon  the  expira- 
tion' of  the  lease  had  rented  out  the  lot  to  a  third  party,  and  received 
the  entire  profits,  and  the  bill  was  filed  to  obtain  an  account  of  the 
rents  and  profits,  and  for  a  partition  of  the  property. , 

In  Hannan  v.  Osborn,  4  Paige  (N.  Y.)  336,  the  bill  was  filed  for  the 
'partition  and  sale  of  a  lot  of  land,  and  an  account  of  the  rents  and  prof- 
its, and  the  account  directed  was  of  the  rents  and  profits  received  by 
any  of  the  parties,  not  of  the  profits  made  in  the  use  and  occupation  of 
the  premises. 

In  Turner  v.  Morgan,  8  Ves.  143,  the  bill  prayed  partition  of  a  house 
at  Portsmouth,  and  an  account  of  the  rent,  under  the  following  circum- 
stances :  The  house  was  decreed  to  three  persons,  equally  to  be  divided. 
The  plaintiff  purchased  two-thirds.  The  defendant  was  tenant  of  tlie 
house  under  a  lease  of  (i22)  twenty-two  pounds  a  year,  and  refusing  to 
raise  the  rent,  the  plaintiff  brought  ejectment  for  his  two-thirds.  The 
ejectment  was  defeated,  the  defendant  purchasing  the  remaining  third. 
Upon  this,  the  bill  was  filed.  The  Chancellor  allowed  a  partition.  No 
question  appears  to  have  been  made  upon  the  right  of  the  plaintiff  to 
an  account,  the  defendant  having  been  tenant  under  the  lease ;  and  the 
Chancellor  observed,  in  relation  to  the  account,  that  there  was  a  possi- 
ble distinction  between  the  time  during  which  the  defendant  was  ten- 
ant, and  the  time  since  he  became  owner,  but  that  justice  would  be 
answered  by  inquiring  what  would  have  been  a  reasonable  rent  in  each 
year  the  account  was  sought. 


Ch.  5)  ESTATES   CREATED  715 

The  doctrine  laid  down  by  the  Court  of  Appeals  of  South  Carolina, 
as  to  tlie  liability  of  one  co-tenant  to  another,  is  believed  to  be  peculiar 
to  tliat  Court.  In  Hancock  v.  Day,  McMul.  Eq.  (S.  C.)  69,  36  Am. 
Dec.  293,  Thompson  v.  Bostick,  McMul.  Eq.  (S.  C.)  75,  and  Holt  v. 
Robertson,  A'lcMul.  Eq.  (S.  C.)  475,  it  was  held  that  as  between 
tenants  in  common,  the  occupying  tenant  is  liable  for  rent  of  so 
much  of  the  premises  as  was  capable  of  producing  rent  at  the  time  he 
took  possession,  but  not  liable  for  that  which  was  rendered  capable  by 
his  labor.  The  reasons  upon  which  these  decisions  rest  do  not  com- 
mend themselves  to  our  judgment,  and  are  insufficient  to  overcome  the 
force  of  the  EngHsh,  Massachusetts,  New  York,  and  Kentucky  au- 
thorities. 

The.  demurrer  should  have  been  sustained;  but  as  the  same  result 
was  obtained  by  a  judgment  rendered  for  the  defendant  on  the  merits 
of  the  case,  it  will  be  sufficient  to  direct  the  affirmance  of  the  judg- 
ment.^* 

5  8  See  Gage  v.  Gage,  66  N.  H.  2S2.  29  All.  543,  28  L.  R.  A.  829  (1890),  semble 
contra. 

The  Stat.  4  Anne,  c.  16.  §  27,  has  been  deemed  in  some  states  a  part  of  the 
common  law,  as,  for  example,  in  Massachusetts  and  Maryland.  Munroe  v. 
Luke,  1  Mete.  459  (1840) ;  Flack  v.  Gosnell,  76  Md.  SB,  24  Atl.  414,  16  L.  R.  A. 
547,  35  Am.  St.  Rep.  413  (1892).  In  many  states  there  are  statutes  in  varjang 
terms  giving  to  one  co-owner  a  remedy  along  the  general  lines  of  the  statute  of 
Anne,  against  another  co-owner.    See  1  Stim.  Am.  St.  Law,  §  1378. 

By  chapter  2,  §  1  (paragraph  27  of  Jones  &  A.  Ann.  St.  of  Illinois,  1913),  it  is 
provided:  "That  where  one  or  more  joint  tenants,  tenants  in  common  or  copar- 
ceners in  real  estate,  or  any  interest  therein,  shall  take  and  use  the  profits  or 
benefits  thereof,  in  greater  proportion  than  his,  her  or  their  interest,  such  per- 
son or  persons,  his,  her  or  their  executors  and  administrators,  shall  account 
therefor  to  his  or  their  co-tenant,  jointly  or  severally." 

Section  10956  of  Howell's  Michigan  Statutes  provides  that :  "One  joint  ten- 
ant or  tenant  in  common,  and  his  executors  or  administratoi's,  may  maintain 
an  action  for  money  had  and  received,  against  liis  cotenant,  for  receiving  more 
than  his  just  proportion  of  the  rents  or  profits  of  the  estate  owned  by  them 
as  joint  tenants  or  tenants  in  common." 

As  to  whether  the  rents  and  profits  have  been  "received"  so  as  to  permit  use 
of  the  remedy  under  Stat.  4  Anne,  c.  16,  or  similar  statute,  see  Henderson  v. 
Eason,  17  Q.  B.  701  (1851) ;  Sargent  v.  Parsons,  12  Mass.  149  (1815) ;  Woolever 
V.  Knapp,  18  Barb.  (N.  Y.)  265  (1854) ;  Cheney  v.  Ricks,  187  III.  171,  58  N.  E. 
234  (1900) ;    Howard  v.  Throckmorton,  59  Cal.  79  (1881). 

m  West  V.  Weyer,  46  Ohio  St.  66,  18  N.  E.  537,  15  Am.  St.  Rep.  552  (1888), 
under  a  statute  which  provided  that  "one  tenant  in  common,  or  coparcener,  may 
recover  from  another  his  share  of  the  rents  and  profits  received  by  such  tenant 
m  common  or  coparcener  from  the  estate,  according  to  the  justice  and  equity 
of  the  case,"  it  was  held  that  a  cotenant  in  possession  of  the  entire  common 
property  could  be  required  to  account  for  his  co-owner's  share  of  the  reasonable 
worth  of  such  occupation,  thou2h  there  had  been  no  ouster.  See  Thompson 
V.  Bostick,  McMul.  Eq.  (S.  C.)  75  (3840) ;  Early  v.  Friend,  16  Grat.  (Va.)  21. 
78  Am.  Dec.  649  (1860) ;  Hayden  v.  Merrill,  44  Vt.  336,  8  Am.  Rep.  372  (1872) 
ace. 


716  DERIVATIVE  TITLES  (Part  2 

CALVERT  V.  ALDRICH. 
(Supreme  Judicial  Court  of  Massachusetts,  1S68.    99  Mass.  74,  96  Am.  Dec  693.) 

Contract.  The  defendant  filed  a  declaration  in  set-off  on  an  ac- 
count annexed  for  two  fifths  of  the  cost  of  repairs  of  a  machine  shop 
in  Lowell :  and  the  only  question  in  dispute  in  the  case  was  the  liability 
of  the  plaintiff  for  any  portion  of  such  cost. 

At  the  trial  in  the  superior  court,  before  Reed,  J.,  these  facts  appear- 
ed :  Calvert  and  Aldrich  owned  the  machine  shop  and  the  machinery 
therein  in  the  proportion  of  two  fifths  and  three  fifths  respectively,  as 
tenants  in  common ;  and  Aldrich,  having  agreed  to  pay  to  Calvert  a 
yearly  rent  for  such  occupation  of  Calvert's  two  fifths,  was  in  occupa- 
tion thereof  when  the  building  caught  fire,  and  the  roof,  windows  and 
one  of  the  floors  were  so  burnt  that  the  machinery  was  exposed  to 
injury  by  the  weather.  Calvert  at  this  time  was  in  Europe,  but  had 
an  agent  in  Lowell,  to  whom  Aldrich  immediately  represented  the  im- 
portance of  repairing  the  building.  The  agent  confessed  such  impor- 
tance, but  replied  that  he  had  no  authority  from  Calvert  to  sanction  any 
repairs,  and  wrote  to  Calvert  for  instructions,  who  replied,  declining 
to  make  any  repairs  upon  the  building.  This  letter  the  agent  showed 
to  Aldrich,  who  meanwhile  had  caused  the  building  to  be  repaired. 
After  the  return  of  Calvert,  Aldrich  showed  him  the  repairs  and  stated 
to  him  the  expenses  thereof,  and  asked  him  to  contribute  his  propor- 
tion of  the  same.  But  Calvert,  not  disputing  that  the  expenses  were 
reasonable,  contended  that  he  was  not  Hable  for  any  portion  of  them, 
and  refused  to  contribute. 

On  these  facts  the  judge  ruled  that  the  defendant  could  not  recover 
on  his  account  in  set-off,  and  ordered  judgment  for  the  plaintiff;  and 
the  defendant  alleged  exceptions. 

Foster,  J.  The  issue  in  this  action  is  on  an  account  of  one  co- 
tenant  in  common  against  another  to  recover  from  the  defendant  in 
set-off  part  of  the  cost  of  certain  needful  repairs  made  by  the  plaintiff 
in  set-off  upon  the  common  property.  It  is  not  founded  upon  any  con- 
tract between  the  parties,  but  upon  a  supposed  legal  obligation  which, 
if  its  existence  were  established,  tlie  law  would  imply  a  promise  to 
fulfill. 

The  doctrine  of  the  common  law  on  this  subject  is  stated  by  Lord 
Coke  as  follows:  "If  two  tenants  in  common  or  joint  tenants  be  of 
an  house  or  mill,  and  it  fall  in  decay,  and  the  one  is  willing  to  repair 
the  same,  and  the  other  will  not,  he  that  is  willing  shall  have  a  writ  de 
reparatione  facienda,  and  the  writ  saith  ad  reparationem  et  sustenta- 
tionem  ejusdem  domiis  teneantur,  whereby  it  appeareth  that  owners 
are  in  tliat  case  bound  pro  bono  publico  to  maintain  houses  and  mills 
which  are  for  habitation  and  use  of  men."  Co.  Lit.  200b ;  Id.  54b. 
And  in  another  place  he  says :  "If  there  be  two  joint  tenants  of  a  wood 
or  arable  land,  the  one  has  no  remedy  against  tlie  other  to  make  inclo- 


Ch.  5)  ESTATES   CREATED  717 

sure  or  reparations  for  safeguard  of  tlie  wood  or  corn,"  but  if  there  be 
two  joint  tenants  of  a  house,  the  one  shall  have  his  writ  de  reparatione 
facienda  against  the  other.  This  is  said  to  be  because  of  "the  pre- 
eminence and  privilege  which  the  law  gives  to  houses  which  are  for 
men's  habitation."    Bowles's  Case,  11  Co.  82. 

In  Carver  v.  Miller,  4  Mass.  561,  it  was  doubted  by  Chief  Justice 
Parsons  whether  these  maxims  of  the  common  law,  as  applied  to  mills, 
are  in  force  here,  especially  since  tlie  provincial  statute  of  7  Anne,  c.  1, 
revised  by  St.  1795,  c.  74. 

In  Loring  v.  Bacon,  4  Mass.  575,  the  plaintiff  was  seised  in  fee  of 
a  room  and  the  cellar  under  it,  and  the  defendant  of  the  chamber  over 
head  and  of  the  remainder  of  the  house ;  the  roof  was  out  of  repair ; 
the  defendant,  being  seasonably  requested,  refused  to  join  in  repairing 
it;  and  thereupon  the  plaintiff  made  the  necessary  repairs,  and  brought 
assumpsit  to  recover  from  the  defendant  his  proportion  of  their  cost. 
This,  it  will  be  observed,  was  not  a  case  of  tenancy  in  common,  but 
of  distinct  dwelling-houses,  one  over  the  other.  Chief  Justice  Parsons 
said:  "If  there  is  a  legal  obligation  to  contribute  to  these  repairs,  the 
law  will  imply  a  promise.  We  have  no  statute  nor  any  usage  on  the 
subject,  and  must  apply  to  the  common  law  to  guide  us."  "Upon  a  very 
full  research  into  the  principles  and  maxims  of  the  common  law,  we 
cannot  find  that  any  remedy  is  provided  for  the  plaintiff."  It  was  not 
absolutely  decided  that  an  action  on  the  case  would  not  lie,  but  the 
intimations  of  tlie  court  on  the  subject  were  such  that  no  further  at- 
tempt appears  to  have  been  made.  The  relations  between  tenants  in 
comm.on  were  not  actually  involved  in  this  case,  and  the  remarks  touch- 
ing the  writ  de  reparatione  were  only  incidental  and  by  way  of  illustra- 
tion. 

Doane  v.  Badger,  12  Mass.  65,  was  an  action  on  the  case.  The  plain- 
tiff' had  a  right  to  use  a  well  and  pump  on  the  defendant's  land ;  and 
the  defendant  had  removed  the  pump  and  built  over  the  well,  thereby 
depriving  the  plaintiff  of  the  use  of  the  water.  The  judge  before 
whom  the  case  was  tried  had  instructed  the  jury  that  the  defendant,  by 
the  terms  of  a  deed  under  which  he  claimed,  was  bound  to  keep  the 
well  and  pump  in  repair,  although  they  were  out  of  repair  when  he  pur- 
chased, and,  without  any  previous  notice  or  request,  was  liable  in  dam- 
ages for  the  injury  the  plaintiff  had  sustained  by  his  neglect  to  make 
repairs.  The  court  held  that  no  such  evidence  was  admissible  under 
the  declaration,  the  cause  of  action  stated  being  a  misfeasance,  and  the 
proof  offered  being  of  a  nonfeasance  only;  also,  that  a  notice  and  re- 
quest were  indispensable  before  any  action  could  be  maintained.  Mr. 
Justice  Jackson  in  dehvering  the  opinion  made  some  general  observa- 
tions, unnecessary  to  the  decision  of  the  cause,  the  correctness  of  which 
requires  a  particular  examination.  He  said  that  the  action  on  the  case 
seems  to  be.  a  substitute  for  the  old  writ  de  reparatione  facienda  be- 
tween tenants  in  common,  and  could  not  be  brought  until  after  a  re- 
quest and  refusal  to  join  in  making  the  repairs.     He  added:    "From 


718  DERIVATIVE  TITLES  (Part  2 

the  form  of  the  writ  in  the  register,  it  seems  that  the  plaintiff,  before 
bringing  the  action,  had  repaired  the  house,  and  was  to  recover  the 
defendant's  proportion  of  the  expense  of  those  repairs.  The  writ  con- 
chides,  'in  ipsius  dispendium  non  modicum  et  gravamen.'  It  is  clear 
that  until  he  have  made  the  repairs  he  cannot  in  any  form  of  action 
recover  anything  more  than  for  his  loss  as  of  rent,  &c.,  while  the  house 
remains  in  decay.  For  if  he  should  recover  the  sum  necessary  to  make 
the  repairs,  there  would  be  no  certainty  that  he  would  apply  the 
money  to  that  purpose."  IMumford  v.  Brown,  6  Cow.  475,  16  Am. 
Dec.  440,  a  per  curiam  opinion  of  the  supreme  court  of  New  York, 
and  Coffin  v.  Heath,  6  Mete.  80,  both  contain  obiter  dicta  to  the  same 
effect,  apparently  founded  upon  Doane  v.  Badger,  without  further 
research  into  the  ancient  law. 

If  it  were  true  that  the  writ  de  reparatione  was  brought  by  one  co- 
tenant,  after  he  had  made  repairs,  to  recover  of  his  cotenant  a  due  pro- 
portion of  the  expense  thereof,  there  would  certainly  be  much  reason" 
for  holding  an  action  on  the  case  to  be  a  modern  substitute  for  the  ob- 
solete writ  de  reparatione.  But  all  the  Latin  forms  of  the  writ  in  the 
Register,  153,  show  that  it  was  brought  before  the  repairs  were  made, 
to  compel  them  to  be  m.ade  under  the  order  of  court.  Indeed,  this  is 
implied  in  the  very  style  by  which  the  writ  is  entitled,  de  reparatione 
facienda,  viz.:  of  repairs  to  be  made;  the  future  participle  facienda 
being  incapable  of  any  other  meaning.  This  also  appears  in  Fitzherbert. 
N.  B.  127,  where  the  writ  between  cotenants  of  a  mill  is  translated; 
the  words,  in  ipsius  dispendium  non  modicum  et  gravamen,  (quoted 
by  Judge  Jackson,)  being  correctly  rendered,  "to  the  great  damage  and 
grievance  of  him,"  the  said  plaintiff.  Fitzherbert  says :  "The  writ  lieth 
in  divers  cases;  one  is,  where  there  are  three  tenants  in  common  or 
joint  or  pro  indiviso  of  a  mill  or  a  house,  &c.,  which  falls  to  decay,  and 
one  will  repair  but  the  other  will  not  repair  the  same ;  he  shall  have  this 
writ  against  them."  In  the  case  of  a  ruinous  house  which  endangers 
the  plaintiff's  adjoining  house,  and  in  that  of  a  bridge  over  which  the 
plaintiff'  has  a  passage,  which  the  defendant  ought  to  repair,  but  which 
he  suffers  to  fall  to  decay,  the  words  of  the  precept,  are,  "Command  A. 
that,"  &c.,  "he,  together  with  B.  and  C,  his  partners,  cause  to  be  re- 
paired." The  cases  in  the  Year  Books  referred  to  in  the  margin  of 
Fitzherbert  confirm  the  construction  which  we  regard  as  the  only  one 
of  which  the  forms  in  that  author  are  susceptible  namely,  that  the 
writ  de  reparatione  was  a  process  to  compel  repairs  to  be  made  under 
the  order  of  court.  There  is  nothing  in  them  to  indicate  that  an  ac- 
tion for  dam'ages  is  maintainable  by  one  tenant  in  common  against  an- 
other because  the  defendant  will  not  join  with  the  plaintiff  in  repairing 
the  common  property.  In  a  note  to  the  form  in  the  case  of  a  bridge, 
it  is  said  in  Fitzherbert:  "In  this  writ  the  party  recovers  his  damages, 
and  it  shall  be  awarded  that  tlie  defendant  repair,  and  that  he  be  dis- 
trained to  do  it.  So  in  this  writ  he  shall  have  the  view  contra,  if  it  be 
Dut  an  action  on  the  case  for  not  repairinq^.  for  tl^<=r-  1-p  ^hall  recover 


Ch.  5)  ESTATES   CREATED  719 

but  damages."  There  is  no  doubt  that  an  action  on  the  case  is  main- 
tainable to  recover  damages  in  cases  where  the  defendant  is  alone 
bound  to  make  repairs  for  the  benefit  of  the  plaintiff  without  contribu- 
tion on  the  part  of  the  latter,  and  has  neglected  and  refused  to  do  so. 
See  Tenant  v.  Goldwin,  6  Mod.  311,  s.  c.  2  Ld.  Raym.  1089;  1  Salk. 
21,  360. 

The  difficulty  in  tlie  way  of  awarding  damages  in  favor  of  one  tenant 
in  common  against  his  cotenant  for  neglecting  to  repair  is,  that  both 
parties  are  equally  bound  to  make  the  repairs,  and  neither  is  more  in 
default  than  the  other  for  a  failure  to  do  so.  Upon  a  review  of  all  the 
authorities,  we  can  find  no  instance  in  England  or  this  country  in 
which,  between  cotenants,  an  action  at  law  of  any  kind  has  been  sus- 
tained, either  for  contribution  or  damages,  after  one  has  made  needful 
repairs  in  which  the  other  refused  to  join.  We  are  satisfied  that  the 
law  was  correctly  stated  in  Converse  v.  Ferre,  11  Mass.  325,  by  Chief 
Justice  Parker,  who  said :  "At  common  law  no  action  lies  by  one 
tenant  in  common,  who  has  expended  more  than  his  share  in  repairing 
the  common  property,  against  the  deficient  tenants,  and  for  this  reason 
our  legislature  has  provided  a  remedy  applicable  to  mills."  The  writ 
de  rcparatione  facienda  brought  before  the  court  the  question  of  the 
reasonableness  of  the  repairs  proposed,  before  the  expenditures  were 
incurred.  It  seems  to  have  been  seldom  resorted  to ;  perhaps  because 
a  division  of  the  common  estate  would  usually  be  obtained  where  the 
owners  were  unable  to  agree  as  to  the  necessity  or  expediency  of  re- 
pairs. Between  tenants  in  common,  partition  is  the  natural  and  usu- 
ally the  adequate  remedy  in  every  case  of  controversy.  This  is  the 
probable  explanation  of  the  few  authorities  in  the  books,  and  of  the 
obscurity  in  which  we  have  found  the  whole  subject  involved.  But  if 
we  have  fallen  into  any  error  in  our  examination  of  the  original  doc- 
trines of  the  common  law  of  England,  it  is  at  least  safe  to  conclude 
that  no  action  between  tenants  in  common  for  neglecting  or  refusing  to 
repair  the  common  property,  or  to  recover  contribution  for  repairs 
mad^  thereon  by  one  without  the  consent  of  the  other,  has  been  adopt- 
ed among  the  common  law  remedies  in  Massachusetts. 

This  result  is  in  accordance  with  the  rulings  at  the  trial.  Exceptions 
overruled.^'* 

5  9  "The  general  doctrine  is  that  one  tenant  in  common  can  compel  his  coten- 
ant to  share  in  the  expense  of  necessarj'  repairs  to  the  common  property,  by- 
requesting  him  so  to  do.  If  the  cotenant  refuse  to  join  in  making  such  repairs, 
he  may,  after  such  request  and  refusal,  make  them  and  recover  of  the  cotenant 
for  his  proportionate  share.  But  he  cannot,  without  the  consent  of  his  co- 
tenant,  make  permanent  improvements  upon  the  conmion  property  at  the  ex- 
pense of  the  tenants  in  common.  If  he  desires  to  improve  his  share  of  the 
common  property  beyond  what  his  cotenants  will  consent  to,  he  must  resort  to 
a  petition  for  partition,  so  that  he  can  own  his  share  in  severalty.  4  Kent,  Clom, 
420  to  42,3  (*.370,  371) ;  1  Wash.  R.  P.  420,  421 ;  Kidder  v.  Rbrford,  16  Vt  169. 
42  Am.  Dec.  504  (1844)."  Farrand  v.  Gleason,  56  Yt.  6-33,  a38  (1884).  See  Ward 
V.  Ward,  40  W.  Va.  611,  21  S.  E.  746.  20  L.  R.  A.  449,  52  Am,  St.  Rep.  911  (1895). 

"A  tenant  in  common  cannot,  in  the  absence  of  an  agreement  or  understand- 


720  DERIVATIVE  TITLES  (Part  2 

PICKERING  V.  PICKERING. 

(Supreme  Court  of  New  Hampshire,  1885.    63  N.  H.  468,  3  Atl.  744.) 

Bill  in  equity,  for  an  accounting  between  tenants  in  common.  The 
defendant  claimed  to  be  allowed  for  necessary  repairs  made  by  him 
upon  the  premises  without  notice  to  the  plaintiff. 

Bingham,  J.  The  plaintiff  seeks  for  an  accounting,  and  to  charge 
the  defendant  for  the  rents  and  income  of  lands  and  buildings  thereon. 
The  parties  are  tenants  in  common.  The  defendant  has  had  the  pos- 
session and  income  of  the  property  since  December  27,  1883,  and  has 
in  that  time  expended  $370  in  necessary  repairs  that  materially  in- 
creased the  value  of  the  buildings  and  the  income,  and  claims  to  be 
allowed  for  the  same  in  the  accounting.  The  plaintiff  had  no  notice 
of  the  repairs,  and  was  not  requested  to  join  in  making  them. 

If  we  are  to  consider  it  settled  at  common  law  that  one  tenant  in 
common  cannot  recover  of  his  cotenant  a  contribution  for  necessary 
repairs,  where  there  is  no  agreement  or  request  or  notice  to  join  in 
making  them,  or  excuse  for  a  notice  not  being  given  to  join  (Stevens 
V.  Thompson,  17  N.  H.  103,  111,  Wiggin  v.  Wiggin,  43  N.  H.  561,  568, 
80  Am.  Dec.  192),  because  both  parties,  until  this  is  done  are  equally 
in  fault,  one  having  as  much  reason  to  complain  as  the  other  (Mumford 
V.  Brown,  6  Cow.  475^77,  16  Am.  Dec.  440,  Kidder  v.  Rixford,  16 
Vt  169-172,  42  Am.  Dec.  504,  4  Kent  Com.  371,  Doane  v.  Badger,  12 
Mass.  65-70,  Calvert  v.  Aldrich,  99  Alass.  78,  96  Am.  Dec.  693),  it 
does  not  follow  that  in  this  proceeding  for  an  equitable  accounting  for 
the  income,  a  part  of  which  is  produced  by  the  repairs,  the  defendant 
may  not  be  allowed  for  them.  There  is  a  wide  difference  between  a 
right  of  action  at  common  law  to  recover  a  contribution  for  repairs, 
and  a  right  to  have  them  allowed  out  of  the  income,  which  exists  in 
part  through  their  having  been  made.  In  the  first  case,  the  party  makes 
them  at  his  will  on  the  common  property  without  the  consent  or  knowl- 
edge of  his  cotenant,  while  in  the  last  the  cotenant  recognizes  the  ex- 
istence of  the  repairs,  that  they  have  materially  increased  the  income, 
but  demands  the  increase  and  refuses  to  allow  for  the  repairs.  The 
objection,  that  no  privity,  no  joint  knowledge,  no  authority  existed,  is 
in  equity  and  good  conscience  waived  when  the  entire  income  is  de- 
manded. It  is  not  unlike  the  ratification  of  the  acts  of  an  assumed 
agent;  it  relates  back  to  the  time  of  making  the  repairs,  and  makes  the 

ing  with  his  cotenant  to  that  effect,  make  improvements  upon  the  common 
proi^erty  at  the  expense,  in  any  part,  of  his  cotenant,  so  as  to  enable  him  to 
recover  any  portion  of  tlie  cost  or  value  of  the  improvements,  either  in  an  ac- 
tion brought  by  him  for  that  puriiose,  or  by  way  of  set-off  in  an  action  brought 
against  him  by  his  cotenant.  We  are  not  speaking  of  repairs,  nor  of  what 
might  be  done  upon  a  partition."  Walter  v.  (ireenwood,  29  Minn.  87,  90,  12  N. 
W.  145  (1882).  But  see  Nelson  v.  Leake,  25  Miss.  199  (1852) ;  Ruffners  v.  Lew- 
is, 7  Leigh  (Va.)  720,  '60  Am.  Dec.  51o  (.1830). 


Ch.  5)  ESTATES   CREATED  721 

plaintiff  a  privy  from  the  beginning.     He  cannot  claim  the  repairs  and 
the  income,  and  equitably  ignore  the  expense  of  making  them. 

In  Moore  v.  Cable,  1  Johns.  Ch.  (N.  Y.)  385,  a  bill  for  the  redemp- 
tion of  a  mortgage,  it  was  decided  that  the  mortgagee  should  not  be 
charged  for  rents  and  profits  arising  exclusively  from  repairs  made  by 
him. 

In  Jackson  v,  Loomis,  4  Cow.  (N.  Y.)  168,  15  Am.  Dec.  347,  an 
action  of  trespass  for  mesne  profits  against  a  bona  fide  purchaser,  it 
was  held  that  he  should  be  allowed  against  the  plaintiff,  in  mitigation 
of  damages,  the  value  of  permanent  improvements,  made  in  good 
faith,  to  the  extent  of  the  rents  and  profits  claimed  by  the  plaintiff. 
Green  v.  Biddle,  8  Wheat.  1,  5  L.  Ed.  547. 

In  Rathbun  v.  Colton,  15  Pick.  (Mass.)  472,  485,  it  was  decided  that 
when  the  rent  of  a  trust  estate  is  increased  in  consequence  of  improve- 
ments made  by  the  trustee,  the  beneficiary  may  be  put  to  his  election, 
either  to  allow  the  trustee  the  expense  of  such  improvements,  or  be 
deprived  of  the  increase  of  rent  obtained  by  means  thereof ;  that  the 
question  was  not  whether  the  trustee  has  a  right  to  make  a  charge  for 
the  improvements,  but  whether  the  plaintiff's  were  entitled  to  receive 
any  benefit  for  them,  they  refusing  to  contribute  their  share  towards 
the  expense. 

It  seems,  however,  that  courts  of  equity  have  not  confined  the  doc- 
trine of  compensation  for  repairs  and  improvements  to  cases  of  agree- 
ment or  of  joint  purchases,  but  have  extended  it  to  other  cases  where 
the  party  making  the  repairs  and  improvements  has  acted  in  good 
faith,  innocently,  and  there  has  been  a  substantial  benefit  conferred  on 
the  owner,  so  that  in  equity  and  right  he  ought  to  pay  for  the  same. 
2  Story,  Eq.  Jur.  §§  1236,  799b ;  Coffin  v.  Heath,  6  iMetc.  (Mass.)  76, 
80.  And  in  2  Story,  Eq.  PI.  §  799b,  n.  1,  it  is  said :  "In  cases  where 
the  true  owner  of  an  estate,  after  a  recovery  thereof  at  law  from  a 
bona  fide  possessor  for  a  valuable  consideration,  without  notice  seeks 
an  account  in  equity  as  plaintiff  against  such  possessor  for  the  rents 
and  profits,  it  is  the  constant  habit  of  courts  of  equity  to  allow  such 
possessor  (as  defendant)  to  deduct  therefrom  the  full  amount  of  all 
meliorations  and  improvements  which  he  has  beneficially  made  upon, 
the  estate,  and  thus  to  recoup  them  from  the  rents  and  profits.  *  *  * 
So,  if  the  true  owner  of  an  estate  holds  only  an  equitable  title  thereto, 
and  seeks  the  aid  of  a  court  of  equity  to  enforce  that  title,  the  court 
will  administer  that  aid  only  upon  the  terms  of  making  compensation 
to  such  bona  fide  possessor  for  the  amount  of  his  meliorations  and  im- 
provements of  the  estate  beneficial  to  the  owner."  This  is  on  the  old, 
established  maxim  in  equity  jurisprudence,  that  he  who  seeks  equity 
must  do  equity.  Hannan  y.  Osborn,  4  Paige  (N.  Y.)  336 ;  Dech's  Ap- 
peal, 57  Pa.  468,  472 ;  Peyton  v.  Smith,  2  Dev.  &  Bat.  Eq.  325,  349 ; 
liibbert  v.  Cooke,  1  Sim.  &  S.  552. 

The  sum  of  $370  for  the  repairs  may  be  deducted  from  the  income, 
Aig.Pkop. — 46 


722  DERIVATIVE  TITLES  (Part  2 

if  it  amounts  to  that  sum ;  if  not,  then  to  cancel  the  income,  whatever 
it  may  be. 

The  claim  for  insurance  should  be  disallowed.  It  does  not  appear 
that  it  was  procured  for  the  plaintiff,  or  in  her  interest,  or  with  her 
knowledge,  or  that  she  has  ever  received  or  accepted  any  benefit  aris- 
ing from  it. 

Case  discharged. 

Blodgett,  J.,  did  not  sit;   the  others  concurred. 


Appeal  of  KELSEY. 

(Supreme  Court  of  Pennsylvania,  ISSG.     313  Pa.  119,  5  Atl.  447,  57  Am. 

Pvep.  444.) 

Mr.  Chief  Justice  Mercur  delivered  the  opinion  of  the  Court,  May 
31st,  1886.  . 

This  bill  was  to  compel  partition  of  lands  in  which  the  appellees 
held  the  undivided  five  ninths.  The  Court  decreed  partition,  and 
awarded  to  the  appellants  four  ninths  of  the  land.  Their  complaint 
now  is  the  refusal  of  the  Court  to  allot  to  them  a  proportionate  value 
of  the  permanent  improvements  erected  on  the  land  by  the  appellees. 
It  may  be  conceded  that  there  may.  be  cases  of  partition  in  which  the 
improvements  should  be  held  to  enure  to  the  benefit  of  all  the  co-ten- 
ants. It  is  well  intimated  such  might  be  the  case  where  one  co-tenant 
undertakes  to  improve  the  whole  estate  as  by  erecting  a  building  cov- 
ering the  whole  of  a  city  lot.  Here,  however  the  improvements  appear 
to  have  been  such  only  as  were  reasonably  necessary  for  the  proper 
enjoyment  of  the  land  by  the  co-tenant  who  made  them.  While  the 
title  was  in  the  wife  of  the  appellee  yet  he  was  tenant  by  curtesy  in- 
itiate, and  therefore  in  making  the  improvements,  presumably  for 
himself  and  his  wife,  he  cannot  be  treated  as  a  mere  stranger  or 
volunteer.  While  a  tenant  in  common  is  liable  to  his  co-tenant  for 
repairs  absolutely  necessary  to  buildings  already  erected  and  in  being, 
which  fall  into  decay;  yet  he  is  not  liable  to  his  co-tenant  for  new 
and  permanent  buildings- which  the  latter  erects  thereon:  Beaty  v. 
Bordwell,  91  Pa.  438;  Crest  v.  Jack,  3  Watts,  238,  27  Am.  Dec.  353; 
Dech's  Appeal,  57  Pa.  467.  Hence,  although  the  appellees  owned 
the  larger  share  of  the  land  they  were  powerless  to  compel  the  appel- 
lants to  contribute  towards  the  improvements.  The  appellees  must 
either  forego  the  proper  use  and  enjoyment  of  their  estate  or  else  in- 
cur the  necessary  expense  to  make  it  productive.  They  chose  to  do 
the  latter.  The  appellants  paid  nothing  towards  the  improvements,  and 
their  estate  was  not  injured  by  the  erection  thereof.  This  is  a  pro- 
ceeding in  equity.  Due  regard  must  be  had  to  the  equitable  rights 
of  each  party.    Under  the  facts  of  this  case  it  would  not  be  a  just  ap- 


Ch.  5)  ESTATES  CREATED  723 

plication  of  the  rules  in  equity  to  give  to  the  appellants  any  share  of 
the  value  of  the  permanent  improvements  made  by  the  aypellees  only. 
Decree  affirmed,  and  appeal  dismissed  at  the  costs  of  the  appel- 
lants.«o 


GRISWOLD  V.  JOHNSON. 
(Supreme  Court  of  Errors  of  Connecticut,  1824.     5  Conn.  3G3.) 

This  was  an  action  of  ejectment;  tried  at  New  London,  October 
term,  1823,  before  Peters,  J. 

The  plaintiff  claimed  title,  by  virtue  of  a  deed  from  Charles  Gris- 
wold,  administrator  de  bonis  non  with  the  will  annexed  of  Dyar 
Throop,  deceased.  In  support  of  the  title  of  Dyar  Throop,  the  plain- 
tiff produced  the  will  of  his  father,  Rev.  Benjamin  Throop,  deceased, 
containing  the  following  devise :  "To  my  two  sons,  Dyar  and  Ben- 
jamin, I  give  and  bequeath  to  them,  and  their  heirs  and  assigns,  that 
part  of  my  farm  which  lies  Easterly  of  Wolf-swamp  brook  to  be  equal- 
ly divided  between  them  for  quantity  and  quality;  and  that  my  son 
Dyar  have  the  part  next  the  brook;  upon  the  consideration  that  they 
bear  their  proportion  with  my  other  son,  William,  in  paying  what 
debts  and  legacies  my  personal  estate  will  not  answer,  if  any  there 
be."  That  part  of  the  farm,  which  lay  Easterly  of  Wolf-swamp 
brook,  was  a  tract  of  about  thirty-seven  acres;  and  the  administra- 
tor's deed  to  the  plaintiff  contained  about  seventeen  acres  of  that  part 
of  such  tract  lying  next  adjoining  the  brook,  including  the  demanded 
prem-.ses,  and  described  the  land,  which  it  purported  to  convey  by 
metes  and  bounds.  The  plaintiff'  claimed,  and  adduced  evidence  to 
prove,  that  such  land  was  one  half  in  quantity  and  quality  of  the  tract 
of  thirty-seven  acres.  He  also  claimed,  that  Dyar  Throop  took  such 
land,  under  the  devise,  as  estate  in  severalty.  The  judge  instructed 
the  jury,  that  Dyar  and,  Ben  jamin,  under  the  devise,  took  the  tract  lying 
Easterly  of  the  brook,  as  tenants  in  common ;  and  that  the  deed,  as 
it  embraced  but  a  part  of  such  common  estate,  describing  it  by  metes 
and  bounds,  was  void,  and  conveyed  no  title  whatever  to  the  plain- 
tiff. 

The  defendant  claimed,  and  adduced  evidence  to  prove,  that  Dyar 
refused  to  take  any  of  the  land  under  the  devise.  The  plaintiff  in- 
sisted, that  admitting  such  refusal,  Dyar's  part  thereupon  became  in- 
testate estate,  and  he  became  vested  with  an  interest  therein,  as  ten- 
ant in  common  with  the  other  heirs  of  the  testator ;    and  that  the  ad- 

60  See  Louvalle  v.  Menard,  1  Gilman  (6  Til.)  39,  41  Am.  Dec.  161  (1844) ;  Mar- 
tindale  v.  Alexander,  26  Ind.  104.  89  Am.  Dec.  458  (1866);  Burns  v.  Parker 
(Tex.  Civ.  App.)  137  S.  W.  705  (1911) ;  Nelson's  Heirs  v.  Clay's  Heirs,  7  J.  J. 
Marsh.  (Ky.)  139,  23  Am.  Dec.  387  (1832)-;  Cosgriff  v.  Foss,  152  N.  Y.  104,  46 
N.  E.  307,  36  L.  R.  A.  753,  57  Am.  St.  Rep.  500  (1S97) ;  Howard  v.  Morrissey,  7] 
Misc.  Rep.  267,  130  X.  Y.  Supp.  322  (1911) ;  Moore  v.  Williamson,  10  Rich.  Eq. 
(S.  C.)  323,  73  Am.  Dec.  93  (1858). 


724  DERIVATIVE  TITLES  (Part  2 

ministrator's  deed  to  the  plaintiff,  whether  it  contained  the  whole  or 
a  part  of  the  common  estate,  conveyed  the  whole  of  Dyar's  common 
interest  in  the  land  described  in  that  deed.  The  judge  instructed  the 
jury,  that  if  the  deed  embraced  any  quantity  of  the  common  estate 
less  than  the  whole,  describing  it  by  metes  and  bounds,  such  convey- 
ance was  in  law  null  and  void. 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff 
moved  for  a  new  trial,  for  a  misdirection. 

HosMER,  C.  J.  The  plaintiff  claims  title  by  the  deed  from  Charles 
Griswold,  the  administrator  de  bonis  non,  with  the  will  annexed,  of 
Dyar  Throop,  deceased.  The  Rev,  Benjamin  Throop  made  his  last 
will,  devising  to  his  sons,  Dyar  and  Benjamin,  a  tract  of  land,  of  which 
the  premises  demanded  is  part,  in  manner  following:  "To  my  two 
sons,  Dyar  and  Benjamin,  I  give  and  bequeath  to  them,  their  heirs 
and  assigns,  that  part  of  my  farm  which  lies  Easterly  of  Wolf-swamp 
brook,  to  be  equally  divided  between  them  for  quantity  and  quality, 
and  that  my  son  Dyar  have  the  part  next  the  brook."  The  above  tract 
contained  thirty-seven  acres,  and  the  aforesaid  administrator  duly 
authorized  by  the  court  of  probate,  gave  to  the  plaintiff'  a  deed  of 
seventeen  acres  thereof,  by  metes  and  bounds,  of  that  part  of  said 
land,  which  lies  next  adjoining  the  brook  aforesaid.  The  plaintiff 
insists,  that  Dyar  Throop,  under  the  aforesaid  devise,  took  the  land 
described  in  the  above  deed,  as  an  estate  in  severalty;  while  the  de- 
fendant urges,  that  the  said  Dyar  and  Benjamin  had  title  to  the 
aforesaid  land,  east  of  the  brook,  as  tenants  in  common.  The  court 
charged  the  jury  in  conformity  with  the  defendant's  claim;  and  that 
if  the  said  deed  embraced  any  quantity  of  said  common  estate,  less 
than  the  whole,  by  metes  and  bounds,  such  conveyance  in  law  was 
null  and  void. 

Whether  the  charge  of  the  court  was  correct,  depends  on  the  an- 
swer which  the  law  gives  to  two  questions,  namely :  Was  the  estate  in 
question  devised  in  common  to  Dyar  and  Benjamin;  and  if  so,  was 
the  deed  invalid. 

1.  Tenants  in  common  are  such  as  hold  by  unity  of  possession,  be- 
cause none  knoweth  his  own  severalty,  and  they  occupy  promiscuously. 
Co.  Litt.  sec.  292;  2  Bla.  Comm.  191.  The  infallible  criterion  of  this 
species  of  estate,  is,  that  no  one  knoweth  his  own  severalty ;  and  hence 
the  possession  of  the  estate  necessarily  is  in  common  until  a  legal  par- 
tition be  made.  But  of  an  estate  in  severalty  the  criterion  is,  that  a  man 
knows,  what  he  has  the  exclusive  right  of  possessing ;  and  his  posses- 
sion is  sole,  because  no  person  has  a  right  to  occupy  with  him.  If 
an  estate  is  given  to  a  plurality  of  persons,  without  any  restrictive, 
exclusive  and  explanatory  words ;  from  the  nature  of  the  case,  they 
are  tenants  in  common.  2  Bla.  Comm.  192,  180.  If  the  grant  super- 
adds, that  the  property  "is  to  be" equally  divided"  between  them,  the 
estate  is  held  in  common,  because  these  words  are  inapplicable  to  a 
several  estate.     2  Bla.  Comm.  192.     Now,  in  the  case  under  discus- 


Ch.  5)  ESTATES  CREATED  725 

sion,  the  devise  to  Dyar  and  Benjamin  of  a  tract  of  land,  constituted  a 
tenancy  in  common  on  the  preceding  principles ;  and  this  more  par- 
ticularly is  evinced,  by  the  words  "to  be  equally  divided  between 
them,  for  quantity  and  quality;"  an  expression  indicating  a  future 
division  of  the  property  devised.  The  expression  that  "Dyar  to  have 
the  part  next  the  brook,''  construing  the  devise  in  all  its  parts  together, 
and  not  dis jointly,  denotes  merely  this;  that  when  a  future  division 
of  the  property  shall  be  made,  Dyar  shall  have  his  portion  assigned 
him  in  the  place  specified.  It,  however,  has  no  possible  effect  on  the 
tenancy  in  common  necessarily  arising  from  the  unity  of  possession ; 
nor  can  it  operate  to  produce  such  estate,  unless  by  exchanging  the 
former  words,  instead  of  giving  them  their  legal  construction.  The 
claim,  that  Dyar  had  devised  to  him  an  interest  in  severalty,  is  not  a 
little  extravagant,  inasmuch  as  the  wisdom  of  the  wisest  would  be  baf- 
fled in  the  ascertainment  of  the  bounds  of  this  supposed  several  estate. 
The  question,  what  is  its  quantity,  its  form,  its  location,  no  one  ex- 
cept a  competent  judiciary  can  resolve.  No  bounds  are  mentioned ;  no 
lines  are  prescribed ;  no  quantity  is  given.  A  court  can  take  cog- 
nizance of  the  case;  and,  in  a  legal  mode,  well  understood,  determine 
the  quantity,  by  the  quality  of  the  land,  and,  on  principles  of  justice, 
assign  a  distinct  location  to  each  of  the  devisees ;  but  there  is  no  com- 
petency to  the  performance  of  either  of  these  acts,  by  an  individual. 

2.  The  deed  of  this  common  estate,  by  metes  and  bounds,  the  one 
tenant  in  common  thus  attempting  to  make  a  partition  of  the  property, 
without  any  co-operation  of  the  other,  is,  undoubtedly  void.  The  point 
is  at  rest,  and  not  to  be  questioned.  Hinman  v.  Leavenworth,  2  Conn. 
244,  n. ;  Starr  v.  Leavitt,  2  Conn.  243,  7  Am.  Dec.  268 ;  Mitchell  v. 
Hazen,  4  Conn.  495,  10  Am.  Dec.  169;  Bartlet  v.  Harlow,  12  Mass.  348, 
7  Am.  Dec.  76 ;    Porter  v.  Hill,  9  Mass.  34,  6  Am.  Dec.  22. 

The  determination  of  the  Judge  below  was  correct,  and  no  new  trial 
is  to  be  granted.®^ 


CRESSEY  V.  CRESSEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1913.    215  Mass.  65,  102  N.  E.  314.) 

Petition  for  partition,  filed  in  the  Superior  Court  on  March  17,  1911, 
the  petitioner  alleging  that  he  and  the  respondents  Job  H.  Cressey, 
Anna  E.  Emerson  and  Charles  A.  Newhall  were  tenants  in  common 
of  certain  premises  on  Park  Street  in  Lynn,  their  undivided  shares  be- 
ing as  follows :  petitioner,  eight  twenty-eighths.  Job  H.  Cressey,  seven 
twenty-eighths,  Anna  E.  Emerson,  seven  twenty-eighths,  and  Dorman, 
trustee  for  Charles  A.  Newhall,  six  twenty-eighths ;  and  that  Arthur 
L  Newhall,  Sarah  Effie  Newhall,  Anna  E.  Emerson  and  Charles  A. 
Newhall  claimed  to  own  undivided  interests  other  than  as  alleged. 

61  Smith  V.  Benson,  9  Vt.  138,  31  Am.  Dec.  614  (1837),  ace.  See  Marshall  v. 
Trumbull,  28  Conn.  183,  73  Am.  Dec.  667  (1859). 


726  DERIVATIVE  TITLES  (Part  2 

The  case  was  heard  by  McLaughlin,  J.,  without  a  jury.  The  ma- 
terial facts  found  by  him  are  stated  in  the  opinion.  He  ruled  that  the 
partition  should  be  made  in  the  proportions  set  out  in  the  petition, 
made  an  interlocutory  judgment  accordingly,  and  reported  the  case  for 
determination  by  this  court. 

RuGG,  C.  J.  This  is  a  petition  for  partition  of  land  on  Park  Street 
in  Lynn.  The  question  at  issue  is  the  shares  to  which  the  several  own- 
ers are  entitled.  The  material  facts  are  that  in  1899  William  M.  New- 
hall  died  intestate,  seized  of  several  parcels  of  real  estate,  among  them 
being  the  Park  Street  land  which  is  the  subject  of  this  petition,  leaving 
no  widow  and  seven  children.  Title  to  all  these  parcels  descended  to 
his  seven  children  as  tenants  in  common.  In  1903  on  a  judgment  re- 
covered against  one  of  these  children,  Sarah  E.  Newhall,  all  her  right, 
title  and  interest  in  this  Park  Street  land  described  by  metes  and 
bounds  was  sold,  and  by  mesne  conveyances  the  right  acquired  there- 
by is  now  held  by  Charles  A.  Newhall.  In  March,  1904,  William  F. 
Newhall'  one  of  the  seven  children,  died  unmarried  and  intestate,  leav- 
ing as  his  heirs  his  six  surviving  brothers  and  sisters.  Thereafter 
judgment  was  recovered  against  Sarah  E.  Newhall  and  Harriet  A. 
Newhall,  on  execution  in  which  all  their  right,  title,  and  interest  in 
the  Park  Street  land  on  July  27,  1904,  described  by  metes  and  bounds, 
was  sold,  and  by  mesne  conveyances  all  right  under  this  deed  has  come 
to  the  petitioner.  In  November,  1905,  commissioners  were  appointed 
by  the  Probate  Court  to  make  partition  of  the  several  parcels  of  real 
estate  left  by  William  M.  Newhall  at  his  decease  among  his  six  sur- 
viving children  as  tenants  in  common,  the  share  of  each  being  set  out  in 
the  warrant  as  one  sixth.  In  making  partition  the  commissioners 
reported  that  the  Park  Street  land,  which  they  had  appraised  at  $8,000, 
was  equal  to  four  shares,  and,  as  in  their  judgment  it  could  not  be 
divided  advantageously,  they  set  it  ofif  to  Anna  E.  Emerson,  Sarah 
E.  Newhall,  Harriet  A.  Newhall  and  Mary  I.  Cressey,  to  each  one 
fourth.  This  report  was  confirmed  in  March,  1906.  Between  March 
1906,  and  March,  1910,  Mary  I.  Cressey  deceased  leaving  her  share  to 
Job  H.  Cressey,  one  of  the  respondents.  In  March,  1910,  Harriet 
A.  Newhall  deceased,  unmarried,  intestate,  leaving  her  four  surviving 
brothers  and  sisters  as  her  heirs  at  law,  namely  Anna  E.  Emerson, 
Sarah  E.  Newhall,  Charles  A.  Newhall  and  Arthur  I.  Newhall. 

The  levy  of  the  two  executions  against  Sarah  E.  Newhall  was  not 
upon  the  share  held  by  her  as  tenant  in  common  in  the  entire  real  es- 
tate inherited  by  her  from  her  father.  It  did  not  follow  the  provisions 
of  R.  L.  c.  178,  sec.  13,  14.  As  has  been  pointed  out,  each  was  a  levy 
apon  all  her  title  in  only  one  of  the  several  parcels  held  as  tenants 
in  common,  which  one  was  described  by  metes  and  bounds.  The  levy 
and  sale  upon  execution  of  real  estate  of  a  debtor  operates  as  a  con- 
veyance of  the  title  which  the  debtor  was  capable  of  conveying.  One  of 
several  tenants  in  common  cannot  as  against  his  cotenants  make  a  sale 
by  metes  and  bounds  of  a  portion  of  the  common  land.     Bartlet  v. 


Ch.  5)  ESTATES   CREATED  727 

Harlow,  12  Mass.  348,  7  Am.  Dec.  76;  Benjamin  v.  American  Tele- 
phone &  Telegraph  Co.,  196  Mass.  454,  82  N.  E.  681,  13  Ann.  Cas.  306. 
Sale  on  execution,  which  is  in  the  nature  of  a  statutory  conveyance, 
stands  upon  the  same  basis  as  a  conveyance  by  the  owner. 

The  case  at  bar  is  governed  by  Brown  v.  Bailey,  1  Mete.  254,  in 
which  at  page  257  Chief  Justice  Shaw  said,  respecting  facts  precisely 
similar  to  those  presented  in  the  case  at  bar,  "such  conveyance  or  levy, 
therefore,  is  good  against  the  grantor  and  all  claiming  under  him. 
If  then  the  other  cotenants  release,  or  if  upon  a  partition,  their  full 
shares  are  set  off  in  other  parts  of  the  common  estate,  and  the  part 
conveyed  or  levied  on  is  assigned  to  the  party  whose  share  has  thus 
been  conveyed  or  levied  on  by  metes  and  bounds,  such  partition  op- 
erates by  way  of  estoppel  and  release,  because  no  one  has  any  longer 
a  fight  to  contest  its  validity."  The  principle  that  a  conveyance  by 
metes  and  bounds,  whether  by  personal  deed  or  statutory  transfer, 
by  one  tenant  in  common  of  a  portion  of  the  common  estate,  although 
of  no  efifect  against  the  consent  of  his  cotenants,  operates  after  parti- 
tion by  way  of  estoppel  to  transfer  the  title,  has  been  affirmed  repeat- 
edly. De  Witt  V.  Harvey,  4  Gray,  486,  491 ;  Barnes  v.  Boardman, 
157  Mass.  479,  32  N.  E.  670;  Barnes  v.  Lynch,  151  Mass.  510,  512,  24 
N.  E.  783,  21  Am.  St.  Rep.  470;  Frost  v.  Courtis,  172  Mass.  401,  404, 
52  N.  E.  515. 

The  application  of  this  principle  results  in  something  like  a  wager 
or  chance.  The  grantee  gets  nothing  unless  on  partition  the  share 
of  the  grantor  should  happen  to  include  the  parcel  described  by  metes 
and  bounds  in  the  deed.  The  grantor  loses  by  estoppel  and  release  all 
his  interest  in  the  parcel  so  described  if  it  should  happen  to  be  set 
off  to  him. 

By  the  partition,  the  interest  of  Sarah  E.  Newhall  in  the  entire  es- 
tate inherited  by  her  both  from  her  father  and  her  brother,  consist- 
ing of  several  parcels,  was  converted  into  a  one  fourth  interest  in  the 
Park  Street  property.  Of  this  one  fourth  she  acquired  six  out  of  seven 
parts  by  inheritance  of  the  one  seventh  of  her  father's  estate.  This 
share,  or  six  twenty-eighths,  is  held  by  the  first  levy  of  execution, 
which  was  made  before  the  death  of  the  brother,  from  whom  she  in- 
herited. The  one  sixth  of  one  seventh  which  she  inherited  from  him, 
constituting  one  out  of  seven  parts  of  the  one  fourth  of  the  Park 
Street  property,  or  one  twenty-eighth,  passed  under  the  second  levy, 
under  which  also  passed  the  entire  share  of  Harriet.  The  ruling 
of  the  Superior  Court  as  to  who  are  the  cotenants  and  their  respective 
shares  was  right. 

Interlocutory  judgment  affirmed."* 

62  Cf.  Bising  v.  Stannard,  17  ISIass.  282  (1S21).  Cf.  also  Butler  v.  Roys,  25 
Mich.  5.3,  12  Am    Hep.  218  (1872). 

See  Eiiipric  v.  Alvarado,  90  Cal.  444.  27  Pae.  .356  (1S91) :  Youns  v.  Edwards, 
33  S.  C.  404,  11  S.  E.  1066,  10  L.  R.  A.  .55,  26  Am.  St.  Rep.  6S9  (1S90) ;  Pellow  v. 
Arctic  Iron  Co.,  164  Mlcli.  87,  128  N.  W.  918,  47  L.  R.  A.  (N.  S.)  573,  Ann.  Cas. 
1912B,  827  (1910). 


728  DERIVATIVE  TITLES  (Part  2 

LESSEE  OF  WHITE  v.  SAYRE. 

(Supreme  Court  of  Ohio,  lS2o.     2  Ohio,  110.) 

This  was  an  ejectment,  and  came  before  the  court  upon  a  case 
agreed,  adjourned  from  Greene  county.  The  facts  material  to  be  re- 
porteil,  are  these : 

The  defendant  was  in  possession  of  a  tract  of  land  which  had  been 
the  property  of  his  former  wife,  by  whose  death  it  had  descended  in 
parcenary  to  her  eight  brothers  and  sisters ;  with  one  of  the  latter 
the  defendant  had  again  intermarried.  By  a  judicial  proceeding  in 
the  court  of  common  pleas,  partition  had  been  made  and  a  separate 
part  assigned  to  each  by  metes  and  bounds.  The  lessor  of  the  plaintift 
purchased  the  separate  right  allotted  to  three  of  the  heirs,  and  took 
separate  deeds  from  each  for  so  much  land  specifically  described. 
Error  was  afterward  brought  in  the  Supreme  Court,  upon  the  pro- 
ceedings in  partition,  and  they  were  reversed. 

The  declaration  contained  several  demises ;  among  others,  a  separate 
one  for  one  undivided  eighth  part  of  each  of  the  tracts  contained  in  his 
three  deeds;  and  whether  he  could  recover  upon  these  deeds  and 
demises,  was  the  question  submitted  to  the  court. 

Hitchcock,  J.  It  is  well  settled  that  where  one  joint  tenant,  or 
tenant  in  common,  has  ejected,  or  withheld  the  possession  from  his 
co-tenant,  the  person  so  ejected  or  held  out  of  possession,  may  main- 
tain his  ejectment  against  the  ejector  or  person  in  possession.  To 
determine  the  case  under  consideration,  then,  it  is  only  necessary  to 
ascertain  whether  the  lessor  of  the  plaintiflf  took  anything  under  the 
three  several  deeds  referred  to  in  the  agreed  case,  or,  in  other  words, 
whether  he  had  any  interest  in  the  premises  in  dispute.  The  grantors 
were  three  of  the  heirs  of  the  deceased  wife  of  John  Sayre,  Jr.  By 
the  death  of  tlieir  sister,  the  interest  in  the  one  hundred  and  fifty- 
five  acres  of  land  was  vested  in  them  and  their  brothers  and  sisters  as 
coparceners,  or  tenants  in  common.  It  is  to  be  observed,  that  when 
these  deeds  were  executed,  partition  had  been  made  of  the  one  hun- 
dred and  fifty  acres  of  land,  by  judgment  of  the  court  of  common 
pleas,  in  pursuance  of  the  statute  in  such  case  made  and  provided. 
The  three  parcels  which  were  conveyed  to  White  had  been,  by  this 
judgment,  aparted  and  set  off  to  the  grantors  in  severalty.  Under  the 
then  existing  circumstances,  they  conveyed  nothing  more  than  they 
had  a  legal  right  to  convey.  So  long  as  this  judgment  remained 
in  force,  the  title  of  the  lessor  of  the  plaintiff  to  the  lands  to  him  con- 
veyed, was  perfect.  This  judgment,  however,  was  subsequently  re- 
versed ;  and  it  is  necessary  to  ascertain  how  far  the  deeds,  which  were 
before  operative,  were  affected  by  this  reversal.  That  the  reversal 
must  in  part,  at  least,  defeat  the  operation  or  validity  of  those  deeds, 
there  can  be  no  doubt.  The  judgment  being  reversed,  tlie  parties  in 
interest  could  be  no  more  affected  by  it  than  if  no  judgment  had  beer? 


Ch.  5)  ESTATES   CREATED  729 

rendered.  Under  these  circumstances,  the  decision  of  this  case  must 
depend  upon  the  solution  of  these  several  questions :  1.  Can  one  of 
two  or  more  joint  tenants,  coparceners,  or  tenants  in  common,  con- 
vey his  interest  in  the  estate  thus  held?  2.  If  he  can  convey  his  in- 
terest or  estate  in  the  whole  property  thus  held,  can  he  convey  it  in  a 
part  merely?  3.  Is  a  deed,  or  grant,  which  purports  to  convey  an 
estate  in  severalty,  when  the  grantor  has,  in  fact,  only  an  estate  in 
joint  tenancy,  coparcenary,  or  in  common,  void ;  or  does  it  convey 
the  whole  interest  of  the  grantor  in  the  premises  purporting  to  be  con- 
veyed ? 

1.  Can  one  of  two  or  more  joint  tenants,  coparceners,  or  tenants 
in  common,  convey  his  interest  in  the  estate  thus  held? 

This  is  a  question  about  which  it  is  presumed  there  can  be  no  dis- 
pute. Such  conveyances  are  frequently  made,  and  their  validity  is  not 
questioned.  In  fact,  this  is  one  of  the  most  common  modes  resorted 
to  for  destroying  a  joint  tenancy.  One  joint  tenant  aliens  and  con- 
veys his  estate  to  a  third  person,  by  \vhich  means  the  joint  tenancy  is 
severed  and  turned  into  a  tenancy  in  common. 

2.  If  one  joint  tenant,  etc.,  can  convey  his  interest  or  estate  in  the 
whole  property  thus  held,  can  he  convey  it  in  a  part  merely? 

The  determination  of  this  question  is  attended  with  considerable 
difficulty.  This  difficulty,  however,  arises,  not  so  much  from  any  ap- 
parent inconsistency,  or  impropriety  in  such  grant,  as  from  a  possible 
inconvenience  which  might  result  to  the  tenant  who  retains  his  estate. 
One  tenant  in  common  may  grant  his  entire  interest  or  estate  in  a 
particular  species  of  property,  a  tract  of  land  for  instance,  or  he  may 
grant  one-half  as  a  smaller  proportion  of  his  interest  in  the  same  en- 
tire property.  If  this  be  correct,  no  good  reason  is  perceived  why  he 
may  not  grant  his  entire  interest  in  a  particular  part.  A.  and  B.  are 
seized  of  a  section  of  land  as  tenants  in  common.  It  is  well  estab- 
lished, that  A.  may  grant  his  entire  interest,  or  estate,  in  the  section, 
and  the  conveyance  will  be  valid.  Upon  what  principle,  then,  can  it 
be  said,  that  if  he  convey  his  entire  interest  in  a  particular  quarter  of 
such  section,  such  conveyance  shall  be  void?  Certainly  A.  and  B. 
tenants  in  common,  as  aforesaid,  might  with  propriety  unite  and  con- 
vey a  particular  quarter  of  the  section,  and  a  complete  title  in  the 
grantee  would  be  vested.  Would  not  the  title  of  the  grantee  be  equally 
valid,  if  the  tenants  in  common  should  by  separate  deeds  convey  to  him 
their  individual  interest  in  that  particular  quarter?  This  question,  it 
is  believed,  must  be  answered  in  the  affirmative,  and  if  so,  it  proves 
conclusively  that  one  tenant  in  common  may  transfer  to  a  third  person 
his  entire  interest  in  a  part  of  the  property  held  in  common.  Other- 
wise we  run  into  this  absurdity,  tljat  a  deed  properly  executed,  by 
one  individual,  which  is  an  entire  -thing,  and  purports  to  convey  a 
specific  property,  must  depend  for  its  validity  upon  the  execution  of 
a  similar  instrument  by  a  third  person,  who  is  in  no  way  party  to  the 
first.     The  principal  reason  assigned  why  one  tenant  in  common  shall 


730  DERIVATIVE  TITLES  (Part  2 

not  be  allowed  to  convey,  as  before  stated  is,  that  by  so  doing,  he  may 
do  a  great  injury  to  his  co-tenant,  by  compelling  him  in  case  of  parti- 
tion, to  take  his  proportion  of  the  estate  in  small  parcels,  very  much 
to  his  disadvantage.  If  such  evils  would  result,  they  ought  if  possible 
to  be  avoided.  It  does  not  follow,  however,  that  because  one  of  two 
tenants  in  common  can  convey  his  estate  in  a  part  of  the  property  so 
held,  therefore  the  rights  of  his  co-tenant  are  affected.  This  co-tenant 
will  still  have  the  same  interest  in  every  part,  and  in  the  whole  of  the 
property.  He  can  still  compel  partition,  and  may  have  his  share  of  the 
property  s€t  off  to  him  in  severalty,  in  the  same  manner  he  could  have 
done  had  no  conveyance  been  made.  Such,  at  least,  as  at  present  ad- 
vised, is  Jthe  opinion  of  the  court,  and  if  in  this  we  are  mistaken,  the 
objection  is  not  of  sufificient  force  to  induce  us  to  adopt  any  other  prin- 
ciple, as  applicable  to  this  case,  than  as  before  stated. 

3.  Is  a  deed,  or  grant,  which  purports  to  convey  an  estate  in  sever- 
alty, when  the  grantor  has  in  fact  only  an  estate  in  joint  tenancy,  co- 
parcenary, or  in  common,  void;  or  does  it  convey  the  whole  interest 
of  the  grantor  in  the  premises  purporting  to  be  conveyed? 

Every  deed  is  to  be  so  construed  as,  if  possible,  to  give  effect  to  the 
intention  of  the  parties.  It  is  to  be  construed  most  strongly  against 
the  grantor.  If  the  intention  of  the  parties,  apparent  upon  the  face 
of  the  instrument,  cannot  be  carried  into  effect,  this  object  should  be 
attained  as  far  as  is  possible.  Taking  these  principles  into  considera- 
tion, and  adopting  them  as  correct,  it  follow^s,  that  where  an  individual 
undertakes  to  convey  to  another  a  greater  interest  in  the  thing  conveyed 
than  what  he  possesses,  the  grantee  may  take  that  which  was  in  his 
grantor.  A.  conveys  to  B.  one  hundred  acres  of  land  by  metes  and 
bounds.  It  is  afterward  ascertained  that  C.  has  title  to  fifty  of  the 
one  hundred  acres  included  within  the  boundaries.  Will  it  be  said 
that  B.  can  take  nothing  by  this  deed?  On  the  contrary,  all  the  lands 
within  the  prescribed  boundaries,  to  which  A.  had  title,  are,  by  the 
conveyance,  vested  in  B.  So  far  as  the  deed  can  have  effect,  so  far 
it  ought.  The  circumstance  that  the  grantor  has  attempted  to  convey 
more  land  than  he  was  possessed  of,  shall  not  prevent  the  deed  from 
conveying  that  of  which  he  was  possessed.  Upon  the  same  principle, 
if  A.  and  C.  had  been  tenants  in  common  of  the  same  one  hundred 
acres  of  land,  and  A.  had  attempted  to  convey  tlie  whole  in  severalty 
to  B.  so  far  as  A.  had  any  interest,  that  interest  would,  by  the  convey- 
ance, have  been  vested  in  B.  Thus  far  the  deed  would  take  effect. 
Under  it  B.  would  become  tenant  in  common  with  C.  in  the  same 
manner  he  would  have  done  had  tlie  conveyance  from  A.  been  for  an 
undivided  moiety  of  the  land. 

These  principles  being  applied  to  tlie  case  under  consideration,  it 
will  be  seen  that  the  grantors  of  "tlie  lessor  of  the  plaintiff,  although 
they  had  not  a  several  estate  in  the  parcels  of  land  by  them  to  him 
conveyed,  yet  had  an  interest  as  coparceners,  or  tenants  in  common 
with  others.     That  by  the  deeds  of  conveyance,  this  interest,  what- 


Ch.  5)  ESTATES   CR"EATED  731 

ever  it  might  be,  was  vested  in  the  lessor  of  the  plaintiff;  and  he  be- 
ing kept  out  of  possession  by  the  defendants,  the  action  is  well  brought, 
and  the  plaintiff  is  entitled  to  a  judgment.  Let  judgment,  tlierefore, 
be  entered  accordingly."^ 


SECTION  7.— REVERSIONS  AND  REMAINDERS 


LEAKE,  LAW  OF  PROPERTY  IN  LAND. 

If  tenant  in  fee  simple  convey  the  land  to  a  person  for  a  particular 
estate  only,  as  for  an  estate  tail,  or  for  term  of  life,  or  of  years,  there 
remains  in  him  and  his  heirs  an  estate  expectant,  as  to  the  possession, 
upon  the  determination  of  the  particular  estate.  This  estate  is  called 
the  reversion,  because  the  land  then  reverts  or  returns  in  possession  to 
him  or  to  his  heirs.     *     *     * 

In  like  manner,  if  the  tenant  of  a  particular  estate  convey  the  land 
for  a  less  estate,  he  has  a  reversion  left  in  himself.     *     *     * 

The  grant  of  a  particular  estate,  leaving  a  reversion  in  the  grantor, 
creates  a  tenure  between  the  tenant  of  the  particular  estate  and  the 
reversioner.  This  tenure  is  not  within  the  statute  of  Quia  Emptores, 
for  that  statute  extends  only  to  alienations  in  fee  simple,  preventing 
any  new  tenure  arising  upon  such  alienations.  Hence  rent  reserved 
upon  such  a  grant  of  a  particular  estate  is  of  the  nature  of  rent  serv- 
ice, and  is  attended  at  common  law  with  the  remedy  of  distress.  And 
a  grant  of  the  reversion  impliedly  carries  with  it  all  the  incidents  of 
the  tenure,  as  the  rent  service,  if  any,  unless  there  be  an  express  ex- 
ception of  such  incidents  in  the  grant.     *     *     * 

If  tenant  in  fee  simple  convey  a  particular  estate  in  the  land  to  one 
person,  and  at  the  same  time  another  estate,  to  commence  in  possession 
immediately  upon  tlie  expiration  of  the  particular  estate,  to  another 
person,  the  latter  estate  is  called,  relatively  to  the  prior  particular  es- 
tate, a  remainder.  Thus,  if  tenant  in  fee  simple  grant  to  A.  for  life, 
and  after  the  determination  of  that  estate  to  B.  for  life,  the  estate  of 
B.  is  a  remainder  relatively  to  the  estate  of  A.  So,  if  the  grant  be 
made  to  A.  for  life,  and  after  the  determination  of  that  estate  to  B. 
arid  to  his  heirs,  B.  has  a  remainder  in  fee.  In  the  former  example 
there  is  a  reversion  in  fee  in  the  grantor ;  in  the  latter  the  whole  fee 
is  disposed  of  and  there  is  no  reversion.  In  like  manner,  several  re- 
mainders may  be  created  successively  in  the  same  land,  either  leaving 
a  reversion  or  with  an  ultimate  remainder  in  fee. 

6  3  The  dissenting  opinion  of  Burnet,  J.,  is  omitted. 

See  Matter  of  Prentiss,  7  Ohio.  129,  jit.  2,  .30  Am.  Dec.  20.3  (1836);  Barn- 
hart  V.  Campbell,  50  Mo.  597  (1S72) ;  KoLanett  v.  Preston's  Heirs,  2  Rob.  (Va.) 
278  (1S4TJ);    Stark  v.  Barrett,  15  Cal.  .301  (1S60). 


732  DERIVATIVE  TITLES  (Part  2 

If  a  grant  be  made  to  A.  for  life,  and  after  the  lapse  of  a  day  after 
his  death  to  B.  for  life  or  in  fee,  the  limitation  to  B.  is  not  a  remainder, 
because  it  does  not  commence  in  possession  immediately  on  the  deter- 
mination of  the  particular  estate;  it  is  a  hmitation  of  a  freehold  es- 
tate to  commence  in  f  uturo,  which  in  a  common  law  conveyance  is  void, 
and  the  reversion  of  A.'s  estate  remains  in  the  grantor. 

Also  a  limitation  which  is  to  take  effect  in  defeasance  of  a  preced- 
ing estate,  without  waiting  for  the  regular  determination  of  that  estate 
according  to  the  terms  of  its  limitation,  is  not  a  remainder ;  and  such 
a  limitation  is  void  at  common  law.  But  the  preceding  particular  es- 
tate may  be  made  determinable  by  a  conditional  limitation,  and  the 
estate  limited  to  take  effect  in  possession  immediately  upon  its  deter- 
mination, whether  that  happen  under  the  conditional  limitation  or  by 
the  expiration  of  the.  full  term  of  limitation,  is  a  remainder. 

The  particular  estate  and  the  remainder  must  be  created  at  the  same 
time  by  one  conveyance  or  instrument ;  for  if  the  particular  estate  be 
first  created,  leaving  the  reversion  in  the  grantor,  any  subsequent  dis- 
position can  be  effected  only  by  grant  or  assignment  of  the  reversion ; 
which  is  not  thereby  changed  into  a  remainder,  but  still  retains  its 
character  of  a  reversion,  to  which  the  tenure  of  the  particular  estate 
is  incident. 

A  remainder  which  is  certain  as  to  the  owner  and  absolute  as  to  his 
estate  or  interest  is  a  vested  remainder ;  the  remainderman  is  presently 
invested  with  a  portion  of  the  seisin  or  freehold,  the  whole  fee  being 
divided  into  a  particular  estate  and  remainder  or  remainders. 
.  But  a  remainder  may  be  limited  to  a  person  not  yet  ascertained,  or 
to  a  certain  person  upon  a  condition  precedent  which  may  not  happen 
until  after  the  determination  of  the  particular  estate;  and  whilst  such 
uncertainty  lasts,  as  to  the  person  or  the  interest,  it  is  described  as  a 
contingent  remainder.  A  contingent  remainder  becomes  changed  into 
a  vested  remainder  by  the  owner  becoming  certain  or  tlie  condition 
happening  during  the  continuance  of  the  particular  estate. 

According  to  Fearne:  "A  contingent  remainder  is  a  remainder  lim- 
ited so  as  to  depend  on  an  event  or  condition  which  may  never  happen 
or  be  performed,  or  which  may  not  happen  or  be  performed  till  after 
the  determination  of  the  preceding  estate."  And,  as  he  afterwards 
explains :  "It  is  not  the  uncertainty  of  ever  taking  effect  in  possession 
that  makes  a  remainder  contingent;  for  to  that  every  remainder  for 
life  or  in  tail  is  and  must  be  liable;  as  the  remainderman  may  die 
or  die  without  issue  before  the  death  of  the  tenant  for  life."  The 
present  capacity  of  taking  effect  in  possession,  if  the  possession  were 
to  become  vacant,  and  not  the  certainty  that  the  possession  will  be- 
come vacant,  before  the  estate  limited  in  remainder  determines,  uni- 
versally distinguishes  a  vested  remainder  from  one  that  is  contingent. 

The  principle  of  the  common  law  that  the  seisin  of  the  freehold  can 
never  be  in  abeyance,  but  must  always  be  vested  in  some  determinate 
person  imposed  two  rules  upon  the  limitation  and  operation  of  con- 


Ch.  5)  ESTATES   CREATED  733 

tingent  remainders :  The  first  of  which  rules  was  that  a  contingent  re- 
mainder of  freehold  must  always  have  a  particular  vested  estate  of 
freehold  to  support  it. 

The  other  rule  resulting  from  the  principle  above  stated  is :  That  a 
contingent  remainder  must  formerly  have  become  vested  during  the 
continuance  of  the  particular  estate  or  at  the  instant  of  its  determina- 
tion. If  not  then  vested,  it  failed  altogether,  and  the  next  limitation 
took  immediate  effect. 

The  limitation  of  a  contingent  remainder  for  Hfe  or  in  tail,  as  it  con- 
veys no  estate,  but  only  a  possibility  of  an  estate  in  a  future  event, 
does  not  interfere  with  the  limitation  of  a  vested  estate  of  freehold 
in  remainder ;  and  upon  the  contingent  remainder  becoming  vested 
during  the  continuance  of  the  particular  estate,  the  vested  remainder 
will  be  postponed  in  interest. 

Where  there  is  a  contingent  limitation  in  fee  absolute,  no  estate 
limited  afterwards  can  be  vested ;  but  twO'  or  more  several  contingent 
remainders  in  fee  may  be  limited  as  substitutes  or  alternatives  one 
for  the  other,  so  that  one  only  take  effect,  and  each  subsequent  limita- 
tion be  substituted  for  a  former  if  it  should  fail  of  effect;  and  the 
inheritance  in  the  meantime,  if  not  otherwise  disposed  of,  remains  in 
the  grantor  and  his  heirs,  or  in  the  heirs  of  the  testator  "until  the  con- 
tingency happens  to  take  it  out  of  them.  Upon  a  devise  of  a  contingent 
remainder  in  fee,  the  fee  subject  to  the  contingency  will  pass  as  a 
vested  remainder  under  the  will  by  a  specific  or  residuary  devise. 

Randall's  Ed.,  pp.  228,  229,  230,  231,  233,  234,  236,  237,  243,  244. 


DERIVATIVE  TITLES  (Part 

CHAPTER  VI 

COVENANTS  FOR  TITLE 


NOKE  V.  AWDER. 

(Queen's  Beuch.  1595.  Cro.  Eliz.  373,  436.) 
Covenant.  Wherein  he  shews  that  one  John_King  made  a  lease  for 
years  to  A.jdie  defendant,  who  by  deed  granted  it  to  Abel,  andja;^e- 
nq,ni£d  with  him^__yiat-be  and  his  assignees  should  peaceably  enjoy  it 
without  interruption.  Abel  grants  it  to  J.  S.  who  grants  tlie  term  to 
the  plaintiff,  who  being  ousted  by  a  stranger,  brings  this  action;  and 
after  issue  joined  upon  a  collateral  matter,  and  after  verdict  for  the 
plaintiff,  it  was  alleged  in  arresi^_ofJudgment,  that  this  action  lay  not 
for  the  second  assignee,  unless -Jie-CQuld  shew  the  deed  of  the  first 
,  c^\ciianl,  and  of  the  assignment,  and  of  every  mean  assignment;  for 
^«4r  without  deed_none  can  be  assignee  to  take  advantage  of  any  cove- 
[  J  ^  ^f  nant,  which  cannot  commence  jwithout  deed ;  and  to  that  purpose  cited 
lA  »  y^  Old  Act,  102.  and  19  Edw.  II.  "Covenant,"  25.  And  if  one  be  in- 
feoffed  with  warranty  to  him  his  heirs  and  assignees,  and  the  feoffee 
makes  a  feoft'ment  over  without  deed,  the  assignee  shall  not  take  ad- 
vantage of  this  warranty,  because  he  hath  not  any  deed  of  assignment. 
But  if  he  had  the  deed,  it  should  be  otherwise;  and  to  that  purpose 
vide  13  Edw.  III.  "Vouch."  17.  3  Edw.  III.  "Monstrans  de  Fayts" 
37.  11  Edw.  IV.  Ibid.  164.  15  Edw.  II.  Ibid.  44.  13  Hen.  VII. 
13.  &  14.  22  Ass.  plea  88.  But  Popham  held,  that  he  shall  have  ad- 
vantage ._ with.QU,t  ..the, deed  of  assignment;  for  there  is  a  difference 
^vhere•a  covenant  is  annexed  to  a  thing,  which  of  its  nature  cannot 
pass  at  the  first  without  deed,  and  where  not.  For  in  the  first  case, 
the  assignee  ought  to  be  in  by  deed,  otlierwise  he  shall  not  have  ad- 
vantage of  the  covenant;  and  therefore  he  denied  tlie  case  of  the 
feoffee  with  warranty ;  for  the  second,  feoffee  sh^ll  have  benefit  of  ihe 
warranty,  although  he  joth^not  shew  the  deed  of  assignment,  but  shews 
tlie  deed  of  the  warranty:  and  so  is  the  better  opinion  of  the  books. 
And  to  that  opinion  the  other  justices  incHned.  Sed  adjournatur. 
Vide  3  Co.  63. 

It  was  now  moved  again.  And  all  the  Justices  agreed,  that  the  as- 
sjo'nee  shall  have  an  action  of  covenant  without  shewing  any  deed_2 f 
the  assignment:  for  it  is  a  covenant  which ^runs  with  the  estate:  ^d 
the  estate  being  passed  without  "^eed,  the  assignee "sfiall  have  the  ben- 
efit of  the  covenant  also:  and  the  executor  of  the  baron,  who  is  as- 
signee  in  law,  who  comes  in  without  deed,  shall  have  the  benefit  of 
such  a  covenant,  as  appears  30  Edw.  3.  in  Symkins  Simonds'  case. 
And  Popham  and  Fenner  held,  th^t  a  feoffee  shall  yi 


w^. 


Ch.  6)  COVENANTS   FOR  TITLE  735 

ranty  made  to  his  feoffor,  without  shewing  any  deed  of  assignment : 
for  the  deed  of  assig;nment  is  not  requisite,  nor  is  it  to  any  purpose  to 
shew  it;  for  it  appears  by  the  books,  that  being  shewn,  it  is  not  tra- 
versable by  the  vouchee.  And  as  a  warranty  or  covenant  is  not  grant- 
able,  nor  to  be  assigned  over  without  the  estate;  so  when  the  estate 
passeth,  akhough  it  be  by  parole,  the  warranty  and  covenant  ensue 
it|  and  the  assignee  of  the  estate  shall  have  the  benefit  thereof.  Coke 
Attorney  General  (who  was  of  counsel  with  the  defendant)  said,  that 
the  law  was  clear  as  you  have  taken  it,  yet  the  declaration  is  ill ;  for 
he  declares,  quod  cum  Johannes  King,  10  Eliz.  let  that  to  the  defend- 
ant for  years,  virtute  cujus  he  was  possessed,  and  granted  it  to  Abel 
by  indenture  with  the  covenant,  who  in  15  KHz.  assigned  it  to  the 
plaintiff:  and  further  alledgeth,  that  loiig  time  before  that  the  said 
J.  K.  had  any  thing,  one  Robert  King  was  seised  in  fee,  viz.  7  Eliz. 
and  so  seised,  died  seised  in  15  Eliz.  and  it  descended  to  Thomas  King, 
who  entered  upon  the  plaintiff  and  ousted  him;  so  he  doth  not  shew 
that  John  King  who  made  the  lease  had  any  thing;  for  Robert  King 
was  thereof  then  seised.  And  then  when  John  King  let  to  the  de- 
fendant, and  he  granted  his  term  by  indenture,  nothing  passed  but  by 
estoppel ;  then  the  lessee  by  estoppel  cannot  assign  any  thing  over, 
and  then  the  plaintiff  is  not  an  assignee  to  maintain  this  action.  Sut 
admitting  that  J.  K.  had  at  the  time  of  the  lease  made  by  him,  a  lease 
for  a  greater  number  of  years,  and  that  Robert  King  had  the  free- 
hold, and  thereof  died  seised,  and  so  all  might  be  true  which  is  plead- 
ed ;  tlien  the  entry  of  Thomas  King  upon  the  defendant  is  not  lawful. 
So  quacumque  via  data,  this  action  cannot  be  maintained.  And  this 
point  for  the  case  of  estoppel  was  adjudged  in  this  Court,  in  the  case 
of  Armiger  v.  Purcas,  in  a  writ  of  error. 

And  all  the  Court  held  here,  that  it  was  clear  upon  the  matter  shewn, 
tkat  the  action  lav  not ;  for  the  plaintiff  ought  to  have  shewn  an  estate 
by  descent  in  T.  King.^t  the  time  of  the  lease  and  assignment  made,  or 
an  estate  wherebv  he  might  make  a  leas.^.  and  that  this  was  afterwards 
determined ;  and  so  confess  and  avoid  the  estate  in  the  lessor,  other- 
wise this  action  of  covenant  lieth  not:  aiid  it  never  lies  upon  the  as- 
signment of  an  estate  by  estoppel.  Wherefore  they  were  of  opinion 
to  have  then  given  judgment  against  the  plaintiff;  but  afterward  they 
would  advise  until  the  next  term. 

Note.  This  was  continued  until  Trin.  41  Eliz.  and  then  being  miOved 
again,  all  the  justices  resolved,  that  the  assignee  of  a  lease  by  estoppel, 
shall  not  take  advantage  of  any  covenant;  but  that  it  shall  not  be 
intended  a  lease  by  estoppel,  but  a  lawful  lease.  But  no  sufficient 
title  being  shewn  to  avoid  it,  it  is  then  as  an  entry  by  a  stranger  with- 
out title,  which  is  not  any  breach.  Wherefore  it  was  adjudged  for 
the  defendant.^ 

1  In  an  action  of  covenant  for  nnnn.qvment  of  rent  by  the  assigriee  of  the 
Tpgsnr^gavnsf,  l;Qp  lepsep  f-he  plninfiff  in  his  dpHni-Mtion  alleged  seiSin  in  fee  in 
tfielessor  at  the  time  of  making  the  indenture  of  lease,  the  execution  of  said 


736  DERIVATIVE  TITLES  (Part  2 

BEDDOE'S  EX'R  v.  WADSWORTH. 

(Supreme  Court  of  New  York,  1S39.     21  Wend.  120.) 

Demurrer  to  declaration.  Thi§  was  an  action  on  covenants  of  jjjzt- 
rantv  and  for^uiet  enjoyment,  contained  in  a  deed  of  land,  dated  July 
7th,  1797,  executed  by  the  defendant  to  John  Johnston.  Each  count 
(there  being  six  in  all)  averred  that  afterwards,  viz.  on  tlie  same  day, 
the  defendant.by  Johnston's  direction,  and  with  his  consent,  surrender- 
ed possession  of  the  land  to  the  testator.  John  Beddoe.  who  continu£fl 
in  possession  until  Johnston,  on  the  16th  August.  1802.  bv  indenture,  in 
consideration  of  one  dollar,  therein  expressed  as  in  hand  paid  by 
Beddoe.  did  *'remise.  release.  And  forever  quit  claim  unto  the  said  Jnhn 
Beddoe.  his  heirs  and  assigns  forevejr,  all  the  right,  title,  interest, 
claim  or  demand,  which  the  said  John  Johnston,  &c.  had  in  or  to  the 
said  tract,  &c.  to  have  and  to  hold  the  said  tract,  &c.  unto  the  said 
John  Beddoe,  his  heirs  and  assigns  forever,  to  his  and  their  own  proper 
use,  benefit  and  behoof,  &c."  Each  count  stated  an  eviction  from 
part  of  the  premises,  while  in  possession  of  persons  Haiminy  nndpr 
Tohn  Reddoe.  the  plamtitt^s  testator,  and  diirir|cy  th^  litAti-m^  ^f  t^» 
testator.  The  eviction  was  alleged  to  have  been  in  virtue  of  a  title 
in  one  Rachel  Malin.  All  the  counts  except  the  sixth  stated  this  title 
to  be  paramount  to  the  defendant's ;  and  all  except  the  fifth  averred 
that  the  plaintiff^  as  executor,  had  thereby  incurred  damages  and  costs. 
The  hlth  count  averred  that  the  testator  in  his  lifetime,  and  the  plain- 
tiff  since  his  death,  had  been  obliged  to  pay  them. 

The  first  and  second  counts  averred  that  the  defendant's  deed  to 
Johnston  was  given  to  and  received  by  Johnston-* for  and  in  behalf  ni 
RpdHop,  thp  t^st^to^.  and  for  his  benefit. 

All  the  counts  except  the  third,  concluded  as  for  a  breach  of  the  cov- 
enant for  quiet  enjoyment  only;  the  third  was  for  a  brearl]  nf  the 
covenant  of  warranty  only.  But  the  deed  as  set  forth  in  eadi  count 
in  fact  contained  covenants  of  seisin,  of  warranty,  for  quiet  enjoyment, 
and  further  assurance.     The  defendant  demurred  to  each  count. 

CowEN,  J.  If  the  covenants  of  warranty  and  for  quiet  enjoyment 
passed  by  the  quitclaim  deed  from  Johnston  to  the  plaintiff's  testator, 
the  right  of  action  sought  to  be  shown  by  the  declaration  seems  to 
be  clear  in  all  the  counts  except  the  sixth.  This  count  is  defective  in 
n^t  averring  that  the  eviction  was  by  a  title  paramount  to  that  of  the 
deTendant.  Webb  v.  Alexander,  7  Wend.  281 ;  Luddington  v.  Pulver, 
6  Wend.  404  to  406;  Greenby  v.  Wilcocks,  2  Johns.  1,  3  Am.  Dec.  379 ; 

indenture,  the  assi^ment  by  the  lessor,  and  the  breach.  To^a  nlea  nllPEp'ng 
that  prior  to  the  making  of  said  lease  the  lessor  had  conveyed  the  premises  in 
fee  and  that  thereafter  the  lessor  has  no  Interest  therein,  there  was  a  deiu u r- 
i;e?r" The  Seniurrer  was  sustained.  Palmer  v.  Ekins,  2  Ld.  Raym.  1550  (1728) . 
See  Cuthbertson  v.  Irving,  4  H.  &  N.  471  (1859)  ace. 

Noke  V.  Awder  was  approved  in  Nesbit  v.  Montgomery,  1  N.  C.  181  (1800), 
and  in  Martin  v.  Gordon,  24  Ga.  583  (1858). 


Ch.  6)  COVENANTS  FOR  TITLE  737 

Ellis  V.  Welch,  6  Mass.  246,  4  Am.  Dec.  122 ;  per  Savage,  Ch.  J.,  in 
Rickert  v.  Snyder,  9  Wend.  421,  422;  4  Kent's  Comm.  479,  3d  Ed. 
Non  constat  bnt  Rachel  Malin  mav  have  proceeded  to  eviction  upon 
a  right  derived  from  Johnston  or  the  testator  himself.  In  the  other 
five  counts,  however,  there  is  enough  to  show  that  during  the  life 
time  of  Beddoe  the  testator,  he  either  became  personally  liable  on  cove- 
nants to  his  grantees  as  to  a  part  of  the  premises  from  which  they 
were  evicted  by  a  title  superior  to  the  defendants,  or  suffered  an  in- 
jury in  an  eviction  of  his  tenant  by  a  like  superior  title.  Then  it  is 
averred  either  that  the  plaintiff  was  compelled  to  pay  damages  and  costs 
as  executor,  or,  according  to  the  fifth  count,  the  testator  in  his  life  time 
was  obliged  to  pay  a  part,  and  the  plaintiff  another  part  after  his 
death.  In  either  case,  the  right  of  action  pertained  to  the  testator 
personally.  The  covenant  was  broken  by  the  eviction,  and  the  whole 
damages  were  due^  Hosmer,  Ch.  ].,  in  Mitchell  v.  Warner,  5  Conn.  504 
to  506,  the  right  to  which  passed  on  his  death,  not  to  his  heir,  but  to 
hjs  personal  representative.  Hamilton  v.  Wilson,  4  Johns.  72,  4  Am. 
Dec.  253  A  covenant  real  ceases  to  be  such  when  broken,  and  no 
longer  runs  witKthe  land.  It  would  not  go  to  the  heir  by  death,  for 
the  same  reason  that  it  could  no  longer  follow  the  land  into  the  hands 
of  a  devisee  or  grantee.  See  Markland  v.  Crump,  18  N.  C.  94,  101,  27 
Am.  Dec.  230;  Kingdom  v.  Nottle,  1  Maule  &  Sel.  355;  s.  c,  4  Maule 
&  Sel.  53. 

This  view  of  the  case  disposes  of  all  the  minor  objections  raised 
by  the  demurrers.  There  must  be  judgment  for  the  defendant  on  the 
sixth  count,  and  for  the  plaintiff  on  all  the  others,  unless  either  the  first 
or  second  point  taken  by  the  defendant's  counsel  is  sustainable.  These 
are  each  applicable  to  the  remaining  five  counts. 

The  first  point  is,  that  it  appears  from  five  of  the  counts,  that 
when  the  defendant  conveyed  to  Johnston,  he,  the  defendant,  had  no 
title;  and  as  no  estate  therefore  passed  to  the  plaintiff's  testator,  the 
covenants  were  not  assigned;  that  covenants  pass  only  as  incidents 
to  an  estate;  and  if  there  be  none,  the  covenants  cannot  be  said  to 
be  annexed  to  an  estate,  much  less  to  pass  with  it.  The  point  seems 
to  suppose  that  these  covenants  can  never  be  transferred  where  there 
is  a  total  want  of  right  in  the  original  covenantor,  though  his  deed 
transfer  the  actual  possession.  It  seizes  on  the  phrase  in  4  Kent's 
Comm.  471,  note  b,  3d  Ed.,  and  other  books,  "that  they  cannot  be  sep- 
arated from  the  land  and  transferred  without,  but  they  go  with  the 
land  as  being  annexed  to  the  estate,  and  bind  the  parties  in  respect  to 
privity  of  estate."  No  New  York  case  was  produced  which  denies 
that  they  pass  where  the  possession  merely  goes  from  one  to  another 
by  deed,  and  there  is  afterwards  a  total  failure  of  title;  but  there  are 
several  to  the  contrary.  Withy  v.  Mumford,  5  Cow.  137;  Garlock  v. 
Closs,  5  Cow.  143,  n.  And  see  Markland  v.  Crump,  18  N.  C.  94,  27 
Am.  Dec.  230;  Booth  v.  Starr,  1  Conn.  244,  248,  6  Am.  Dec.  233. 
Aig.Prop. — 17 


738  DERIVATIVE  TITLES  (Part  2 

Nor,  when  we  take  the  word  estate  in  its  most  comprehensive  meaning, 
can  it  be  said  there  is  none  in  such  a  case  to  which  the  covenant  may 
attach.  It  is  said  by  Blackstone  to  signify  the  condition  or  circumstance 
in  which  the  owner  stands  with  respect  to  his  property,  2  Black.  Comm. 
103,  and  a  mere  naked  possession  is  an  imperfect  degree  of  title,  which 
rnay  ripen  into  a  fee  by  neglect  of  the  real  owner.  Id.  195,  6.  It  is, 
in  short,  an  inchoate  ownership  or  estate  with  which  the  covenants 
run  to  secure  it  against  a  title  paramount;  and  in  that  sense  is  as- 
signable within  the  restriction  insisted  upon.  It  is  said  in  several 
cases  that  the  covenants  of  warranty  and  quiet  enjoyment  refer  em- 
phaticallyjp  the  possession  and  not  to  the  title!  WaldronTv.  McCarty, 
3  Johns.  471,  473,  per  Spencer,  J. ;  Kortz  v.  Carpenter,  5  Johns. 
120.  The  meaning  is.  that  however  defective  the  title  may  be,  thgse 
covenants  are  not  broken  till  the  possession  is  disturbed.  When  the 
latter  event  transpires,  an  action  lies  to  recover  damages  tor  the  fail- 
ure both  of  possession  and  title  according  to  the  extent  of  such  failure. 
The  case  of  Bartholomew  v.  Candee,  14  Pick.  (Mass.)  167,  was 
mainly  relied  upon  in  support  of  the  ground  taken  by  the  first  point.  All 
that  case  decides  is,  that  a  covenant  no  longer  runs  with  the  land  after 
it  is  broken.  The  declaration  was  by  the  grantee  of  one  Thorp,  to 
whom  the  defendant  had  conveyed  in  fee  with  covenants  of  seizin  and 
warranty;  and  breaches  were  assigned  upon  both.  The  defendant 
pleaded  and  the  jury  found,  that  before  the  defendant  conveyed  to 
Thorp,  he  had  conveyed  to  one  Sparks,  who  entered  and  died  actually 
seized,  leaving  the  land  to  his  children,  who  were  still  actually  seized 
when  the  defendant  conveyed  to  Thorp.  Mr.  Justice  Wilde  arrives  at 
the  conclusion  that  the  covenant  of  seizin  was  broken  before  the.jieed 
from  Thorp  to  the  plaintiff ;_  and  adds :  "This  point  being  establishgd, 
it  is  perfectly  well  settled  that  no  action  will  lie  on  this  contract  in  the 
name  of  the  assignee.  By  the  breach  of  the  covenant  of  seizin,  an 
action  accrued  to  the  grantee,  which  being  a  mere  chose  in  action,  was 
not  assignable."  He  does  not  notice  the  covenant  of  warranty,  but 
seems  to  consider  the  claim  under  that  as  standing  on  the  same  ground ; 
which  I  think  might  well  lie  under  the  pleas  as  found  by  the  jury. 
The  fair  import  of  these  was,  that  neither  Thorp  nor  the  plaintiff 
ever  had  possession ;  so  that,  according  to  some  cases,  the  covenant 
of  warranty  was  also  immediately  broken ;  Duvall  v.  Craig,  2  Wheat. 
45,  61,  62,  4  L.  Ed.  180;  Randolph  v.  Meek,  Mart.  &  Y.  (Tenn.)  58; 
and  according  to  our  own  it  never  could  have  any  effect.  No  p_os- 
session  ever  having  been  taken  under  the  deed,  there  could  be  no  actu al 
eyiction,  which  is  said  to  be  essential  to  a  recovery  upon  a  covenant 
ofw|o;antj^  Webb  v.  Alexander,  7  Wend.  281  to  284,  and  thecases 
tliere  cited ;  Jackson,  ex  dem.  Montresor,  v.  Rice,  3  Wend.  180,  182, 
20  Am.  Dec.  683,  per  Savage,  Ch.  J.;  Vanderkarr  v.  Vanderkarr,  11 
Johns.  122.  See  a  very  full  collection  and  consideration  of  the  cases 
to  this  point,  both  as  it  respects  the  covenant  of  warranty  and  for 
quiet  enjoyment,  by  Hosmer,  Ch.  J.,  in  Mitchell  v.  Warner,  5  Conn. 


Ch.  6)  COVENANTS  FOR  TITLE  739 

521  to  526.  That  an  unbroken  covenant  of  warranty  shall  run  with 
the  possession  of  the  land,  was  not  questioned  by  counsel  or  court  in 
Bartholomew  v.  Candee.  nor  was  it  in  a  subsequent  and  similar  case, 
Wheelock  y.  Thayer,  16  Pick.  (Mass.)  68,  also  relied  upon. 

I  have  looked  through  the  other  cases  cited  by  the  counsel  for  the 
defendant,  and  they  all  go  to  the  point,  eithe^ffiat  a  covenant  broken  j/jjj,  ^  /\*f^ 
ceases  to  be  assignable,  orl:hat  covenants  in  gross  arp  not  so.  Theje  ■^^__— _  -—"" 
positions  are  indisputably  settled ;  and  fwe  have  adopted  the  first,  in 
order  to  show  that  this  action  was  properly  brought  hy  John  .Reddoe's 
executor  instead  of  his  heir.  I  do  not  except  from  this  remark  the 
case  of  Andrew  v.  Pearce,  4  Bos.  &  Pull.  158.  It  is  true  that  was 
an  action  on  covenants  both  that  the  defendant  had  authority  to  de- 
mise and  for  quiet  enjoyment.  The  title  failed  before  the  plaintiff 
took  an  assignment;  he  entered  and  was  ousted:  and  it  wfis  hflc^  that 
he^  could  not  recover,  because  themere  failure  of  thg.J:^^l^  KrnVp  th^ 
covenants.  Mansfield,  Ch.  J.,  said  expressly,  the  assignor  had  only  a 
right  of  action  left,  which  he  could  not  assign.    It  would  seem  by  this  »  • 

case  that,  in  England,  a  simple  failure  of  title,  without  eviction,  would  ^ju-c*-a-«-*^  '*^C/f'*^ 
be  a  breach  of  the  covenant  for  quiet  enjoyment.  With  us  the  doc-  |yt,4^^yv^  ^^^^ 
trme  is  clearly  otherwise.  Kortz  v.  Carpenter,  5  Johns.  120;  Norman  ^  «^  "Va^S  Ct^L 
V.  Wells,  17  Wend.  160,  and  the  cases  there  cited.  And  see  Mitchell 
v.  Warner,  5  Conn.  497,  522,  and  the  very  full  reference  there  to  the 
New  York  cases.  In  Andrew  v.  Pearce,  the  lease  was  treated  as  totally 
gone,  by  a  failure  of  the  title;  whereas  there  was  still  a  continuing 
possession,  till  the  plaintiff  was  ousted,  and  then  and  not  till  then,  ac- 
cording to  our  cases,  was  the  covenant  for  quiet  enjoyment  broken. 
There  is  a  difference  in  more  respects  than  one  between  our  own  and 
the  English  cases  as  to  what  shall  constitute  a  breach  of  the  covenants 
of  title,  so  as  to  take  away  their  assignable  quality.  Even  a  covenant 
of^seizin.  made  and  broken  in  the  same  breath,  is  there  held, to  run  with 
the  land,  till  actual  damages  are  sustained  by  the  breach.^  Kingdom 
V.  Nottle,  1  Maule  &  Sel.  355 ;  4  Maule  &  Sel.  53.  Kent's  Comm. 
471,  2,  3d  Ed.,  says  the  reason  assigned  for  the  decision  is  too  refined 
to  be  sound.  The  case  is  followed  by  Backus'  Adm'r  v.  McCoy,  3  Ohio 
211,  17  Am.  Dec.  585;  but  severely  criticised  in  Mitchell  v.  Warner, 
5  Conn.  497  to  505 ;   Kent's  Comm.  ut  supra,  note  a. 

But  secondly,  if  the  covenant  be  in  its  own  nature  available  to  the 
assignee  as  a  protection  against  the  total  failure  of  the  defendant's 
title,  and  if  it  be  assignable  by  a  grant  of  the  land,  it  is  insisted 
that  none  of  the  counts  in  the  declaration  show  that  such- a  grant  was 
made  from  Johnston  to  the  plaintiff's  testator.  All  the  counts  stop 
with  averrjpjpr  thaf  Johnston,  for  the  consideration  of  one  dollar,  re- 
noised,  released  and  forever  quit-claimed  to  the  testator  in  fee.  Tech- 
nically, these  are  but  words^f  release ;  and  as  up  previous  lease  from 
Johnston  to  the  testator  is  shown,  it  is  supposed  that  the  g:ranting 
words  are  inoperative.  This  objection  supposes  that  the  words  used 
cannot  carry  the  estate  except  as  part  of  a  conveyance  by,  lease  and 


^'' 


t,    Kt40  derivative  titles  (Part  2 

-^   V   release ;    and  that,  in  order  to  give  them  effect,  a  lease  should  be 
*/  7.  shown,  either  by  its  production  and  proof,  in  the  usual  way,  or  its 


/ 


recital  in  the  release;  and  this  formal  strictness  would  seem  still 
tojgrevaUjn  England.  Doe,  ex  dem.  Pember,  v.  Wagstaff,  7  Carr.  & 
Payne,  477.  In  Bennett  v.  Irwin,  3  Johns.  365,  366,  Van  Ness,  J.,  said, 
a  mere  release  or  quit-claim^  unless  the  releasee  is  in  possession,  is 
void.  _Rnt  1-hp  declaration,  in  the  case  at  bar,  shows  that  the  grantee 
was  in  possession.  Even  this  strictness  was,  however,  totally  exploded, 
by  the  case  of  Jackson,  ex  dem.  Salisbury,  v.  Fish,  10  Johns.  456, 
the  operative  words  as  set  forth  in  the  declaration  being  held  of  them- 
selves sufficient  to  raise  and  execute  a  use  under  the  statute.  The 
conveyance  was  there  held  good  as  a  bargain  and  sale.  Had  that  case 
occurred  to  counsel,  we  should  doubtless  have  been  saved  the  ex- 
amination of  this  objection;  for  we  do  not  remember  its  being 
denied  on  the  argument  that  words  which  are  sufficient  to  pass  a  ite 
in  conveyancing  are  equally  sufficient  in  pleading  by  way  of  aver- 
ment. 

The  demurrers  are  overruled  as  to  all  the  counts  except  the  sixth, 
and  the  judgment  must  be  given  for  the  plaintiff. 

The  demurrer  to  the  sixth  count  is  well  taken,  and  judgment  must 
be  given  for  the,de^endant  as  to  that  count,  with  leave  to  both  parties 
to  amend.* 


SQtBERG  v.  ROBINSON. 

(Supreme  Court  of  South  Dakota,  1914.    34  S.  D.  55,  147  N.  W.  87.) 

PoLLEY,.  J.  On  the  27th  day  of  January,  1906,  one  C.  C.  Robinson 
and  wife  executed  and  delivered  to  W.  J.  and  J.  L.  Smith  a  certain 
warranty  deed,  purporting_to^onvey  to  said  Smiths,  with  other  prop- 
env^quarter  section  of  land  in  Hughes  County.  On  tlie  9th  day  of 
January,  1907,  said  Smiths  executed  and  delivered  to  -plaintiffs  a  war- 
rant}'- deed,  purporting  to  convey  said  land  to  plaintiffs,  but  neither  the 
Robinsons  nor  the  Smiths  were  ever  in  the  actual  possession  of  the 

2  See  Dickinson  v.  Hoomes'  Adm'r,  8  Grat.  (Va.)  406  (1852) ;  Slater  v.  Kawson, 
1  Mete,  (aiass.)  450  (1840),  s.  c.  6  Mete.  (Mass.)  439  (1813),  aec. 

See,  also,  Dickson  v.  Desire's  Adm'r,  23  Mo.  lol,  66  Am.  Dec.  661  (1856); 
Backus'  Adm'rs  v.  McCoy,  3  Ohio,  211,  17  Am.  Dec,  585  (1827). 

A.,  the  owner  of  premises,  lived  thereon  with  her  husband,  he  p^YJPg  ^"hp 
taxes  and  looking^  aftpr  repnjrs^  t^tK  laoth  joined  in  a  deed  conveying  the  prem- 
ises  to  X.,  the  deed  cnntainlnp;  fovpn^nts  by  them  that  she  was  seized,  also  for 
quiet  ^niayment  and  general  warranty.  X.  conveyed  to  Y.,  who,  after  eviction. 
sue^  A.  anTB.  on  the  CQvenant.s.     ShonLI  there  be  a  "recovery? 

What  should  be  the  result  where  "ElTe  spouse  s ought" to  be  held  liable  by  the 
assignee  of  the  covenantee  had  an  inchoate  dower  interest  in  the  premises? 
See  H.  T.  &  C.  Co.  v.  Whitehouse  (Utah)  154  Pac.  950  (1916). 

A  conv_eyance  with  warranty  is  made  hv  one  "o^--  in  possession:  the  cove- 
nantee goes  into  possession  and  conveys  to  the  plaintiff,  wno  is  evicted,  ^ojjld 
the  covenantor  be  held  liable  on  the  covenant?  See  Wead  v.  Larkin.  54  111.  489, 
5"Xm:  Rep.  14§'(1870) ;  Tillotson  v.  Prichard,  60  Vt.  94,  14  Atl.  302,  6  Am.  St. 
Rep.  9"i  (I8S7). 


Ch.  6)  COVENANTS  FOR  TITLE  741 

land.     Thereafter,  one  Vesev  commenced  an  action  against  plaintiffs 
for  the  purpose  of  quieting  titleto  said  premises  and  to  enjoin  plaiji- 
tiffs  in  this  action  from  asserting  further  claim  thereto.     Said  action 
was  defended  by  plaintiffs  but,  on  the  trial,  it  developed  that,  from  a 
time  long  prior  to  the  attempted  conveyance  from  the  Robinsons""to 
the  Smiths  and  down  tothe  time,  of  the  triah  said  Vesev  was  the  ab- 
solute, owner  in  fe^  of  the  land  in  question ;  that,  while  Robinson's    -C 
title  appeared  to  come  through  Vesey,  the  deed  which  purported  to  '^•^ 
divest  him  of  his  title  proved  to  be  a>-ig^ggj;;v  and  he  had  judgment  ^'&CA 
prayed  for.     Upon  appeal  to  this  court,  said  judgment  was  affirmed.  A'^^ 
Vesey  v.  Solberg,  27  S.  D.  618,  132  N.  W.  254.  ^ 

In  the  deed  from  Robinson  to  the  Smiths,  Robinson  and  wifa cove- 
nanted Xvith  the  Smiths:    "Their  heirs  and  assigns  that  they  are  well     %^jl^  /tA^^v^ 
seized^in  fee  of  the  lands  and  premises  aforesaid  and  have  good  right  ^     \        ^ 

to  sell  aiid  convey  the  same  in  manner  and  form  aforesaid."  and  that  (/C#vt>»-u^»*  ^* 
"the  above  bargained  and  granted  lands  and  premises  in  quiet  and 
peaceable  possession  of  the  said  parties  of  the  second  part,  their  heirs 


and  assignsTand  against  all  persons  lawfully  claiming  or  to  claim  the 
whole  or  any  part  thereof  the  said  parties  of  the  first  part  will  warrant    c^^^^jf  .  Ax^^x 
and  forever,.defend."     The  deed  from  the  Smiths  to  plaintiffs  con-  .  *     . 

tained  coyen^^nts  (^^  similar  import.  '^  ^^^'*'**^^*'^ 

After  the  affirmance  of  the  judgment  quieting  title  to   the   said 
premises  in  Vesey,  plaintiffs  commenced  this  action  against  the  de-y 
fendant  as  administrator  of  the  estate  of  the  said  C.  C.  Robinson,  whol^^,^,t_..^^  ^^ 
had  died  in  the  meantime,  for  the  purpose  of  recovering  on  the  abo\^  ^ffT 
quoted  covenants  in  the  Robinson  deed  of  January  27,  1906^    During  ^-«^^'*^^**'** 
all  of  this  time,  the  land  in  question  was  vacant  and  unoccupied.    The  */  /(<tCH^*i*.*s*^ 
Smiths  were  named  as  defendants  in  the  summons,  but  only  one  of     C^v^C*^ 
them  was  ever  served,  and  as  to  him,  the  action  was  dismissed.    Plain-] 
tiff  seeks  to  recover  the  amount  Robinson  had  received  for  the  land/rfg^^^,  i  ^^.j^^tM. 
with  interest,  together  with  the  expenses  necessarily  incurred  in  ^e-\  ^ 

fending  the  Vesey  case  in  the  circuit  court^  upon  appeal  to  this  court  I 
apd  upon  motion  for  rehearing,  including  attorney's  fees  for^onduct-  I 
ing  all  of  these  proceedings.     Plaintiffs  had  judgment  in  the  circuit 
court  for  $1183.98.     From  this  judgment  and  the  order  denying  a 
new  trial,  defendant  appeals. 

(1)  It  is  contended  by  appellant  that,  as  Robinson  had  neither  pos- 
session nor  right  of  possession  at  the  time  he  executed  the  deed  to 
the  Smiths,  th_e  covenants  sued  upon  were  HroVpn  a«;  «;oon  as  made 
and,  thereTbre,  did  not  run  with  the  land  nor  inure  to  the  benefit  ^f 
his  remote  grantees.  As  to  the  covenant  of  seizin,  this  contention  is 
undoubtedly  correct.  Our  statute,  section  1139,  Civ.  Code,  enumerates 
certain  covenants  as  those  which  run  with  tlie  land,  but  no  mention  is  a  ,^gLjk^»^  *" 
made  of  the  covenant  of  seizin,  and  tlys  covenant  does  not  nm  with  ^^^^^^  Ji/t^ 
the  land :  Gale  y.  Frazier,  4  Dak.  196,  30  N.  W.  138.  /^^A^^A^  ^^^ 

Under  a  statute  like  ours  it  would  appear  that  it  is  only  the  immedi-^^^  ^"^'^^^J 
ate  grantee  of  the  covenantor  who  can  recover  on  this  covenant.    Plain-*^^    X-*"*'^* 


742  DERIVATIVE  TITLES  (Part  2 

tiffs  could  have  recovered  from  the  Smiths  upon  the  breach  of  this 
covenant,  and  they,  in  turn,  could  have  recovered  from  defendant, 
provided  they  brought  their  action  within  the  period  of  the  statute  of 
limitations.  3  Wash.  Real  Property  (5th  Ed.)  504.  But  there  was  no 
such  privity  of  contract  between  plaintiffs  and  defendant's  intestate  as 
\vould  entitle  them  to  recover  against  defendant. 

(2)  The  other  covenant  set  out  in  plaintiff's  complaint  (thfit  "f  gniet 
enjoymentj_prpt;ppt^  a  Hiffprpnt  prnpr>,t;ifmn  By  express  statute,  this 
covenant  does  run  with  the  land :  Civ.  Code,  §  1139.  This  covenant  is 
made  for  the  benefit  of  remote  as  well  as  immediate  grantees,  and, 
unless  there  is  something  in  the  facts  connected  with  this  case  to  re- 
lieve appellant  from  liability  on  the  covenant,  the  plaintiff  is  entitled  to 
recover,  and  the  judgment  should  be  affirmed.  This  is  conceded  by 
appellant,  but,  to  avoid  Hability,  he  contends  that,  because  his  intestate 
had  no  estate  whatever  in  the  premises  at  the  time  of  making  the 
covenant,  and  because  his  intestate's  grantee  did  not  go  into  possession 
of  the  land,  there  was  nothing  to  which  the  covenant  could  attach  to 
carry  it  to  the  covenantor's  remote  grantees.  He  also  contends  that, 
the  covenantor  having  neither  possession  nor  right  of  possession  at  the 
time  he  made  the  covenant,  a  constructive  eviction  took  place  at  once 
and  that  the  covenant  immediately  ripened  into  a  cause  of  action  in 
favor  of  his  covenantee  that  neither  ran  with  the  land  nor  passed  to 
his  covenantee's  grantee,  and  that,  in  any  event,  more  than  six  years 
had  elapsed  since  the  breach  of  the  covenant  and  plaintiffs'  action  is 
barred  by  the  six  years  statute  of  limitations.  In  other  words,  that, 
in  this  particular  case,  the  effect  of  both  covenants  is  exactly  the  same, 
and  plaintiffs  are  not  entitled  to  recover  on  either.  If  appellant's  po- 
sitiort  is  correct,  the  covenant  for  quiet  enjoyment  contained  in  the 
Robinson  deed  could  never,  under  the  facts  in  this  case,  become  the 
basis  for  a  recovery  by  anyone  except  his  immediate  grantee.  Ahhough 
the  deed  purporting  to  divest  Vesey  of  his  title  was  a  forgery  and 
conveyed  no  title  in  fact,  it  appeared  upon  its  face  to  be  a  valid  coji- 
vevance  and  the  apparent  chain  of  title  from  Vesey  to  plamtitts  was 
perfect.  For  aught  plaintiffs  knew,  or  could  know  until  Vesey  asserted 
his  title,  tVipyjyprp  thp  aKsolute  owners  of  the  fee  and  could  haxe-sone 
into  the  physical  possession  of  the  land  at  any  time. 

Supposmg  plaintiffs  had  taken  possession  and  afterward  had  learned 
the  facts  relative  to  the  title  to  the  land,  and,  before  they  had  been  dis- 
turbed by  Vesey,  had  brought  this  suit  against  defendant  for  breach 
of  the  covenant  for  quiet  enjoyment,  he  could  have  said:  "You  have 
not  been  disturbed  in  your  rightful  possession  of  the  land  and  you 
may  never  be  disturbed.  While  your  deed  may  not  be  good,  it  is  yet 
color  of  title,  and  if  you  are  not  disturbed  by  Vesey  within  the  time 
for  bringing  an  action  for  that  purpose,  your  present  title,  although 
defective,  will  ripen  into  a  title  that  can  never  be  disturbed  by  anyone. 
In  other  words,  you  have  no  cause  of  action  until  you  have  been  ac- 
tually ousted  by  a  decree  of  court."    This  would  be  a  complete  defense 


Ch.  6)  COVENANTS   FOR  TITLE  743 

to  plaintiff's  demand,  or  the  most  they  could  recover  would  be  nominal 

damages  only.  ^ 

Thj^he  proposition  that  covenants  found  in  deeds  purporting,  to  /Ipa/^^A-'^^'''^ 
convev  title  to  land  do  not  run  with  the  land  unless  the  covenantor  ^fT^     ^y 
^vas  possessed  of  some  estate  in  the  land  to  which  the  covenant  could    ^OCm^^'^-^ 
attach  is  supported  bv  manv.  if  notthe  great  weight  of,  judicial  deci- 
sions is  not  questioned.     Notable  among  the  more  recent  decisions  to 
this  effect  is  Bull  v.  Beiseker,  16  N.  D.  290,  113  N.  W.  870,  and  report- 
ed with  an  extended  note,  in  14  L.  R.  A.  (N.  S.)  514;  Mygatt  v.  Coe, 
147  N.  Y.  456,  42  N.  E.  17,  a  New  York  case;  and  Wallace  v.  Pereles, 
109  Wis.  316,  85  N.  W.  371,  53  L.  R.  A.  644,  83  Am.  St.  Rep.  898. 

In  Bull  V.  Beiseker,  supra,  the  court  said :  "The  action  was  brought 
and  the  complaint  framed  upon  the  mistaken  theory  that  the  covenants 
contained  in  defendant's  deed  to  Johnson  were  covenants  running  with 
the  land,  and  therefore  passed  to  Washburn  by  the  deed  from  John- 
son to  him.  This  probably  would  be  true  if  any  title  or  possession  was 
transferred  by  such  conveyances ;  >but,  nnHpr  thp  fartc  allpgpH  j^  1-Tip 
complaint,  neither  title  nor  possession,  actual  or  constructive,  passed 
under  the  deeds,  and  hence  there  was  nothing  for  the  covenants  to 
r\ip  with.  -There,  was  a  constructive  eviction  of  the  grantee  immedi- 
ately upon  the  execution  and  delivery  of  the  deed  to  Johnson;  and  a 
cause  of  action  for  breach  of  the  covenants  in  such  deed  at  once  arose 
in  his  favor  against  the  Beisekers  to  recover  damages  therefor;  and 
the  deed  from  Johnson  to  Washburn  did  not  operate  to  assign  to  the 
latter  such  cause  of  action." 

And  in  Wallace  v.  Perles,  supra,  the  Wisconsin  court  said:  "We 
therefore  hold  that  where  the  record  shows  that  the  grantrtr  1-|pH  nn 
title  and  no  possession,  and  there  is  no  proof  that  the  grantee  took 
possession,  the  covenants  of  the  grantor  are  personal  to  the  grantee, 
and  are  not  transmitted  to  subsequent  grantees  by  a  mere  convevance 
of  the  land." 

And,  again,  in  Mygatt  v.  Coe,  supra,  we  find :  "It  must  be  regarded 
as  the  law  of  this  case  that  privity  of  estate  is  essential  to  carry  cove- 
nants of  warranty  and  quiet  enjoyment  to  subsequent  grantees  in  order 
to  support  a  right  of  action  by  them  against  the  original  covenantor. 
when  there  is  an  eviction  by  paramount  title." 

These  cases  are  fully  supported  by  very  many,  if  not  all,  of  the 
preceding  decisions  on  the  same  subject. 

The  covenants  usually  found  in  deeds  of  conveyance  of  real  prop- 
erty, are  the  subject  of  legislative  enactment  in  many  of  the  states. 
Our  statute,  section  1138,  Rev.  Civ.  Code,  reads  as  follows:  "Every 
covenant  contained  in  a  grant  of  an  estate  in  real  property,  which  is 
made  for  the  direct  benefit  of  the  property,  or  some  part  of  it  then 
in  existence  runs  with  the  land."  Section  1139:  "The  last  section  in- 
cludes covenants  of  warranty,  for  quiet  enjoyment,  or  for  further  as- 
surance, on  the  part  of  a  grantor     *     *     *  ." 


But  these  statutes  do  not  seem  to  have  changed  the  rule  that,  in 


(jlJU_^' 


7U 


DERIVATIVE  TITLES 


(Part  2 


order  that  the  covenant  will  run  with  tlie  land  so  as  to  inure  to  the 
benefit  of  a  remote  grantee,  the  covenantee  must  have  received  some 
estate  in  the  land  to  which  the  covenant  could  attach. 

It  seems  to  be  generally  held  that,  where  the  covenantor  delivers  the 
possession  of  the  land  to  his  grantee  and  he,  in  turn,  puts  his  grantee 
in  possession,  this  constitutes  a  privity  of  estate  sufficient  to  carry  the 
covenant  with  the  land.  And  it  may  be  taken  as  true  tliat  the  reason 
for  the  rule  originated  at  a  time  when  physical  possession  of  land  was 
the  chief  muniment  of.  title  thereto.  But  this  reason  no  longer  exists. 
A  person  who  has  a  ^rant  nf  land  from  the  owner  of  tht^  fee  hernmes 
the  absolute  riwnpr  thereof  and  is  entitled  to  all  the  benefits  that^can 
be  derived  tlierefrom.  even  though  neither  of  them  was  ever  injthe 
actual  possession  thereof.  This  being  the  case,  why  should  it  be  nec- 
essary that  actual^ as  distmguished  from  constrictive,  po^ession  should 
be  delivered  in  order  to  carry  a  covenant  with  the  land  when  the  cov- 
enantor was  without  title?  It  is  for  the  purpose  of  prntpctino-  fVip 
covenantee  and  his  p^rantees  in  their  fjght-  nf  possession  of  the  land, 
and  to  protect  them  ap;-ainst  defective  title  thereto  that  the  covena^^*'  i'=' 
made._  The  right  of  quiet  enjoyment  of  a  piece  of  land  is  its  most  val- 
uable attribute,  and  a  covenant  from  a  grantor  that  his  grantee  shall 
be  protected  in  the  quiet  enjoyment  thereof  adds  materially  to  the 
value  of  the  land  itself,  and  a  material  portion  of  the  consideration 
paid  for  the  grant  may  be,  and  as  a  rule  is,  paid  because  of  the  cove- 
nantee's expectation  of  the  right  of  quiet  enjoyment  of  the  demised 
premises.  I^a  perfect  title  is  pas^sed  to  the  grantee  then  he  need 
never  avail  himself  of  the  covenantin  his  deed,  while,  on  the  other 
hand,  if  it  should  develop  thnt  th*^  ^'''v^nr^ntnr  had  no  estate  whatever 
in  tlie  prpiriJQpg  attempted  to  be  conveyed,  the  grantee  could  not,  ex- 
cept as  against  his  immediate  covenantorr  avail  himself  of  the  cnvp- 
nant.  _  This,  at  least,  is  the  logical  conclusion  to  be  drawn  from  the 
decisions  holding  that  a  remote  grantee  cannot  recover  upon  a  covenant 
unless  the  covenantor  had  some  estate  in  the  land  when  the  covenant 
was  made. 

Some  cases,  notably  Kimball  v.  Bryant,  25  Minn.  496,  and  Iowa 
Loan  &  Trust  Co.  v.  Fullen,  114  Mo.  App.  633,  91  S.  W.  58,  hold  that, 
although  a  covenantor  must  have  some  estate  in  land  at  the  time  of 
making  the  grant  to  which  covenants  can  attach  in  order  to  enable 
a  remote  grantee  to  recover  on  a  breach  of  the  covenant,  yet,  never- 
theless, such  grantee,  however  remote,  who  is  holding  under  said 
grant  at  the  time  of  the  assertion  of,  and  eviction  under,  the  para- 
mount title,  may  recover  the  damages  occasioned  by  the  lack  of  title. 
This  is  upon  the  ground  that  the  covenant  was  broken  as  soon  as  made 
and  at  once  ripened  into  a  chose  in  action  in  favor  of  the  covenantee, 
and  that  the  transfer  of  the  land  by  successive  warranty  deeds  passed 
this  cause  of  action  along  through  the  successive  grantees  until  such 
time  as  an  actual  eviction  by  paramount  title  took  place,  when  the 
party  who  suffered  damage  by  reason  thereof  might  enforce  the  cause 


Ch.  6)  COVENANTS   FOR  TITLE  745 

of  action  that  accrued  in  favor  of  the  first  grantee  against  the  original 
covenantor.  Against  this  doctrine,  this  court  is  already  committed. 
Hill  V.  City,  33  S.  D.  324,  145  N.  W.  570.  We  believe  plaintiffs  should 
recover;  but  we  think  they  should  recover  as  upon  tlie  covenant  itself, 
rather  than  upon  successive  assig^r^p^^^-g  of  a  cause  of  action  that  had 
accrued  in  favor  of  some  prior  grantee.  Under  the  theory  adopted 
by  the  Missouri  and  Minnesota  courts,  unless  the  eviction  take  place 
and  the  action  be  commenced  within  the  period  prescribed  by  the  stat- 
ute of  limitations  for  bringing  such  action,  then  the  right  to  recover 
will  be  barred  by  the  statute,  and  the  party  who  is  holding  under  the 
grant  at  the  time  of  the  eviction  and  the  one  who  suffers  the  real  dam- 
age cannot  reach  the  covenantor  at  all.  Iowa  L.  &  T.  Co.  v.  Fullen, 
supra. 

(3)  But,  again,  since  it  is  held  that  a  delivery  of  the  possession  of 
the  disputed  premises  is  necessary  in  order  that  the  covenant  of  a 
grantor  without  title  may  inure  to  the  benefit  of  his  remote  grantees, 
then  the  constructive  possession  of  the  grantee  ought  to  be  sufficient 
to  carry  the  covenant.  In  this  case,  while  the  Smiths  acQiu'red  no  title 
tQ  the  land  by  virtue  of  their  deed  from  the  Robinsons,  still  they  had 
the  apparent  title  even  as  against  Vesey  himself.  The  county  records 
showed  that  they  had  a  perfect  diain^of  tjtl^,  gnd.  therefore,  the  Smiths 
and  their  grantees  rplaintinsinthis  action^  as  against  the  defemJapt 
shouCT'^e  held  to  have  had  constructive  possession  of  the  granted 
premises,  and  that  plaintiffs  are  entitled  to  recover  against  the  de- 
fendant" because  of  the  eviction  by  Vesey.  This,  of  course,  involves 
th^  doctrine  of  estoppel l^y  deed;  and  we  believe  this  to  be  a  proper  /X^       /J 

case  for  the  application  of  this  doctrine.  .  (  I  ^C-Aa-*--^ 

The  rule  of  estoppel  by  deed  is  stated  in  16  Cyc.  686,  as  follows :  ^    ^-  n 

"A  person  who  assumes  to  convey  an  estate  bv  deed  is  estopped,  as  ^^^''^''Tf^f**^ 

against  the  grantee,  to  assert  anything  in  derogation  of  the  dee(j. He     0         AsJ-M 

will  not  be  heard,  for  the  purpose  of  defeating  the  title  of  the  grantee.  "''^A  ^ 

to  say  that  at  the  time  of  the  conveyance  he  had  no  title,  or  that  none  \\ 

p.assed  by  the  deed  :  nor  can  he  deny  to  the  deed  its  full  operation  and 
effect  as  a  conveyance." 

Where  a  grantor  represents  himself  as  the  owner  of  the  fee  to  a  piece 
of  land  and  agrees  that  he  will  protect  his  grantee  and  assigns  in  their 
peaceful  possession  thereof,  and  it  afterward  develops  that  he  was  not 
the  owner  of  the  fee  and  cannot  defend  his  grantees  in  their  possession 
of  the  land,  and  they  cajl  upon  him  to  respond  in  damages,  why  should 

he  not  be  estopped  from  saying  that  he  did  not  have,  and  convey  the ~   \l  V|        / 

constructive  possession^oF  the  land  as  he  represented  he  Had  and  "lor  /J^n^-A/-^   » 
wdiich  he  had  received  a  valuable  consideration,  and  that,  therefore.  ^Rj^^ 
his  covenant  did  not  pass  beyond  his  immediate  grantee  and  that  he  is 
not  liable  to  the  party  who  has  suffered  by  his  broken  covenant?    And 
why  should  the  rule  just  quoted  not  apply? 

True,  no  case  has  been  called  to  our  attention  where  a  covenantor 
has  been  held  to  be  estopped  by  his  deed  from  claiming  that  he  had  no 


^i^C-^ 


746  DERIVATIVE  TITLES  (Part  2 

estate  in  the  land,  attempted  to  be  conveyed,  at  the  time  he  made  the 
covenant,  and  thereby  escape  habiHty  to  a  remote  grantee  who  had 
been  evicted;  but  neither  has  any  reason  been  suggested  why  this 
should  not  be  done ;  and  we  hold  that  the  defendant  is  estopped_by  the 
covenants  in  his  intestate's  deed  TFom  denying  that  his  intestate  pos- 
any  estate  in  the  land  in  question  at  the  time  the  deed  was  mnde : 
anH  thnt  respondent  is  entitled  to  rprnver  upon  the  broken  cove- 
nant.^   '     *     ^ 

The  judgment  should  be  modified  in  regard  to  the  amount  of  interest 
allowed  respondents  as  herein  indicated,  and  as  so  modified  it  is  af- 
firmed. 


ANDREW  V.  PEARCE. 

(Court  of  Common  Pleas,  1S05.     1  Bos.  &  P.  N.  R,  158.) 

Covenant.  The  declaration  stated,  that  by  indenture,  dated  the  25th 
of  February,  1764,  P.  Best,  the  Defendant's  testator,  demise^  to  one 
Tohn  Garland  and  his  assigns  a  certain  messuage  and  tenement,  com- 
monly known  by  the  name  of  Lower  Bofindle,  in  the  county  of  Corn- 
wall, for  the  term  of  99  years,  at  the  yearly^  rent  of  £4.  per  annum, 
covenanting  that  he,  the  said  P.  Best,  at  the  time  of  the  grant  and_de- 
mise,  had  in  himself  good,  right,  and  lawful  and  absolute  authority_to 
grant  and  demise  the  said  premises ;  and  also  for  the  quiet  enjoyment 
of  the  said  John  Garland,  his  executors,  administrators,  and  assigns, 
during  tlie  said  term,  without  the  let,  hindrance,  molestation,  or  denial 
of  him  the  said  P.  B.,  hiis  heirs  and  assigns,  and  of  all  and  every  other 
person  whatsoever ;  that,  by  virtue  of  the  said  demise,  the  said  John 
Garland,  on  the  25tli  of  February,  1764,  entered  into  the  said  prem- 
ises and  became  possessed  thereof,  and  that  afterwards,  viz.  by  deed 
pf  the  22d  of  June,  1'791,  he  assigned  to  one  John  Bennett,  his  execu- 
tors, administrators,  and  assigns  the  said  demised  premises  for  the 
residue  of  his,  the  said  John  Garland's,  term  therein;  that  John  Ben- 
^  nett  accordingly  entered,  and  afterwards,  viz.,  by  deed  of  the  2d  of  No- 
vember, 1801,  assigned  to  the  Plaintifif,  his  executors,  administrators, 
and  assigns  the  said  premises  for  the  remainder  of  the  said  term  then 
to  come  and  unexpired ;  that  the  plaintift'  accordingly  entered  and  was 
possessed  thereof  until  ejected  therelrom. 

The  declaration  then  alleged,  "that  the  said  P.  Best  deceased,  at  the 
time  of  making  the  said  indenture  of  lease,  had  not,  nor  had  he.  at 
any  other_time  whatsoever,  any  right,  or  title  to  the  said  demised  prem- 
ises,  with  the  appurtenances,  or  any  party  thereof,  in  him,  the  said  P. 
Best  deceased,  in  his  life  time,  or  any  authority  whatsoever,  whereby 
or  by  virtue  whereof,  he,  the  said  P.  Best  deceased,  might  or  could 
lease  or  demise  the  said  demised  premises,  or  any  part  thereof,  with  the 

3  A  portion  of  the  opinion  dealing  with  matters  of  damages  is  omitted. 


Ch.  6)  COVENANTS  FOR  TITLE  747 

appurtenances,  or  any  part  thereof,  to  the  said  John  Garland,  to  hold 
the  same,  or  any  part  thereof,  to  him  the  said  John  Garland,  his  ex- 
ecutors, administrators,  or  assigns,  from  the  said  24th  day  of  Febru- 
ary, 1764,  for,  and  during,  and  unto  the  full  end  and  term  of  99  years 
from  thence  next  ensuing,  and  fully  to  be  complete  and  ended;  and 
that  after  the_maki'^g'  ^^  \\l^:  '=^gid  demise  by  the  said  P.  Best,  decea^d. 
and  after  the  said  Plaintiff  became  such  assignee  of  the  said  demised 
premises  as  aforesaid,  and  during  the  continuance  of  the  said  term, 
to  wit,  on  the  1st  day  of  January,  in  the~yeaFof  our  Lord  1802,  at 
Bodmin  aforesaid,  in  the  county  of  Cornwall  aforesaid,  the  said  Thom-  ^  . 
as  Pearce  became  and  was  lawfully  and  rightfully  entitled  to  have  WA^/f 
and  enjoy  the  immediate  possession  of  the  said  demised  premises,  ^ith  ^9 
the  appurtenances,  under  and  by  virtue  of  a  title  thereto,  in  opposi- 
tion to  the  said  title  of  the  said  Plaintiff  to  the  possession  thereof ;  and 
the  said  Thomas  Pearce  being  lawfully  and  rightfully  entitled  to  the 
said  immediate  possession  of  the  said  demised  premises,  with  the  ap- 
purtenances  of  the  said  Thomas  Pearce,  afterwards  and  while  the 
said  Plaintiff  so  was  in  possession  of  the  said  demised  premises,  with 
the  appurtenances,  and  before  the  expiration  of  the  said  term  of  99 
years  thereof  demised  by  the  said  P.  Best  deceased  as  aforesaid,  to  wit, 
on,  &c."  proceeding  to  state  an  ejectment  for  the  premises  by  T. 
Pearce,  and  judgment  against  the  present  Plaintiff,  and  writ  of  pos- 
session in  consequence;  and  concluded  that  the  said  P.  Best,  deceased, 
in  his  life  time,  and  the  said  T.  Pearce,  executor  as  aforesaid,  since 
his  death  had  rtot  kept  their  covenant  with  the  Plaintiff  since  he  be- 
came assignee  of  the  covenant  made  by  the  said  P.  Best,  in  his  life  time, 
with  the  said  Tohn  Garland  and  his  assigns. 

The  Defendant  pleaded,  "that  the  said  P.  Best,  mentioned  in  the 
said  declaration,  at  the  time  of  making  the  said  indenture  of  demise 
therein  mentioned,  and  from  thence  until  and  at  the  time  of  his  death 
hereinafter  mentioned,  was  seised  in  his  demesne  as  of  fee  tail  male 
of  and  in  the  said  tenements,  with  the  appurtenances,  mentioned  in  the 
said  declaration  and  in  the  said  indenture  of  demise,  that  is  to  say,  to 
him  and  the 'heirs  male  of  his  body  lawfully  issuing,  and  being  so 
seised  thereof,  he,  the  said  P.  Best,  afterwards  and  before  the  making 
of  the  said  supposed  indenture  of  assignment  between  the  said  John 
Bennett  and  the  said  Plaintiff,  also  mentioned  in  the  said  declaration 
(to  wit),  on  the  4th  day  of  June  in  the  year  of  our  Lord  1794,  at,  &c., 
died  so  seised  of  such  his  estate  of  and  in  the  said  tenement  with  the 
appurtenances  without  heir  m^ale  of  his  body  lawfully  issuing:  and  so 
the  said  Defendant  says  that  before  the  making  of  the  said  indenture 
of  assignment  between  the  said  John  Bennett  and  the  said  Plaintiff 
(to  wit)  on  the  said  4th  day  of  June  in  the  said  year  of  our  Lord  1794, 
upon  the  death  of  the  said  P.  Best,  the  said  term  of  years  in  the  said 
tenements,  with  the  appurtenances,  granted  by  the  said  indenture  of 
demise  mentioned  in  the  said  declaration,  and  the  estate  and  interest  of 
the  said  John  Bennett  in  the  same  tenements,  ceased,  and  became  and 


748  DERIVATIVE  TITLES  (Part  2 

were  wholly  void,  ended,  and  determined."    To  tliis  plea  the  Plaintiff 
demurred,  and  the  Defendant  joined  in  denjurrer. 
gy^  Sir  James  AIansfield,  Ch.  J.    This  is  an  action  of  covenant,  and 

y4^  fy       /|        the  declaration  states  that  Peter  Best  in  1764  demised  the  premises  in 
|X«^  II        question  for  99  years  to  Tohn  Garland,  and  covenanted  that  he  had 

-    IaJ^  good  right  to  make  such  demise,  and  that  Garland  should  quietly  enjoy 

Jki^^   I!  the  premises  during  the  said  term;  that  Garland  in  1'791  assigned  to 

V  Bennett,  and  Bennett  in  1801  assigned  to  the  Plaintiff,  who  was  ejected 

by  Thomas  Pearce  under  a  title  superior  to  that  of  Peter  Best.     The 
plea  states  that  Peter  Best,  at  the  time  of  the  demise,  was  seised  of  the 
premises  in  tail  male,  and  before  the  assignment  by  Bennett  to  the 
Plaintiff,  died  so  seised  without  heirs  male  of  his  body,  whereupon  the 
term  of  years  ceased  and  determined.     Upon  these  pleadings,  it  is 
clear  that  Peter  Best  had  no  power  to  make  a  demise  of  these  premises 
to  continue  for  99  years  if  he  should  die  without  issue  maje ;  but  that 
it  was  a  good  lease  so  long  as  he  should  live,  and  he  might  have  lived 
till  the  end  of  99  years.    On  this  demurrer  every  fact  is  admitted ;  it  is 
clear  therefore  that  at  the  time  when  Bennett  assigned  to  Andrew.  Ben- 
nett had  no  interest  in  the  premises  ;_.the  lease  is  stated  to  have  become 
absolutely  void  by  the  death  of  Peter  Best  without  heir  male.     The 
lease  then  having  become  absolutely  void,  what  could  be  the  operation 
of  the  assignment  by  Bennett  to  Andrew?     He  could  neither  assign 
the  lease  nor  any  interest  under  it  because  the  lease  was  gone.    What 
^         yy  right  of  any  sort  had  Bennett?    If  any  thing,  it  could  only  be  a  right 
m.  Jk        {  of  action  on  the  covenant,  and  that  could  not  be  assigned  by  law.    A^ 
\L/^^*0^   A  the  person  who  made  the  assignment  had  no  interest  in  the  premises, 
y(\/^  v-X)  the  assignment  itself  could  Jiave  no  operation.     Consequently  there  is 
I  no  ground  upon  which  the  present  action  can  be  maintained, -and  there- 
fore judgment  must  be  given  for  the  Defendant. 
Judgment  for  the  Defendant 


WILLIAMS  v.  BURRELL. 

(Court  of  Common  Pleas,  1845.     1  C.  B.  402.) 

TiNDAL,  C.  J.*  The  material  facts  out  of  which  the  questions  sent 
to  us  by  his  honour  the  Master  of  the  Rolls  have  arisen,  are  very  few. 
George  O'Brien,  Earl  of  Egremont,  being  tenant  for  life,  with  a-ieas- 
ing  p_ower,_by  indenture  of  lease,  bearing  date  the  24th  of  March.  1B05 , 
demised  to  John  Williams,  the  plaintiff^  for  ninety-nine  years,  if  three 
persons  therein-named  should  so  long  live ;  which  lease,  upon  the  death 
of  the  tenant  for  life  was  held  to  be  void  as  against  the  remainder-man, 
by  the  judgment  of  a  court  of  law,  on  the  ground  that  it  was  not  made 
in  due  conformity  with  the  leasing  power.  This  lease  contained  in  it  a 
clause  in  the  following  terms ;  viz.    "And  the  said  earl,  for  himself,  his 

*  A  portion  of  the  opinion  only  is  printed  here. 


Ch.  6) 


COVENANTS  FOR  TITLE 


749 


heirs  and  assigns,  the  said  demised  premises,  with  the  appurtenances 
unto  the  said  John  WilHams,  his  executors,  administrators,  and  assigns, 
under  the  rent,  covenants,  conditions,  exceptions,  and  agreements  be- 
fore expressed,  against  all  persons  whatsoever  lawfully  claiming  the 
same,  shall  and  will  during  the  said  term  warrant  and  defend."  And 
upon  this  state  of  facts  the  question  is.  whether  the  original  lessee  caiy/^  v 

rnaintain  covenant  against  the  executors  of  the  tenant  for  Hfe.  uporC  ^ ) 

the  clause  of  warranty  above  set  forth. 

And  a  second  question  is  then  put  to  us,  namely,  whether  in  the 
case  of  another  lease  granted  precisely  under  the  same  circumstances, 
and  in  the  same  form,  the  executors  of  the  assignee  of  the  original 
lessee  can  maintain  such  action.     *     *     * 

As  to  the  question  arising  on  the  second  lease,  we  think  that  the 
executor  of  the  assignee  of  the  lessee  has  the  same  right  of  suiag_pn 
tliis  covenant  as  the  original  lessee. 

In  Spencer's  Case,  5  Co.  Rep.  16a,  fourth  resolution,  it  was  held 
that  a  covenant  in  law  for  title  would  pass  with  the  estate :  and  there 
is  neither  principle  nor  authority  to  shew  that  an  express  covenant, 
either  for  title  or  quiet  enjoyment,  will  not  equally  pass,  and  be  avail- 
able for  the  assignee  of  the  lessee,  or  the  executor  of  such  assignee^. 

And,  although  in  Andrew  v.  Pearce,  1  New  Rep.  158,  it  was  held 
that  nonaction  was  maintainable  upon  the  (-nvenant  for  quiet  enjoyment 
by  the  assignee  of  the  lessee  against  the  executor  of  the  lessor:  yet 
that  was  expressly  on  the  ground  that  the  lease  had  become  absolutelv 
void  bv  the  death  of  the-  lessor  before  the  assignment  made  to  Xhe 
plaintiff;  a  fact  which  does  not  occur  in  the  presenLtase." 


BEARDSLEY  v.  KNIGHT. 

(Supreme  Court  of  Vermont,  1S32.    4  Vt.  471.) 

This  was  an  action  of  covenant,  and  the  declaration  contained  two 
counts.  The  first  alleged  that  the  defendant  and  one  Elijah  Hyde,  de- 
ceased, on  the  3d  day  of  March,  1808,  for  the  consideration  of  eighteen 
hundred  dollars,  by  deed  of  that  date,  duly  executed,  acknowledged 
and  recorded,  according  to  law,  conveyed  to  Ebenezer  Hatch,  his 
heirs  and  assigns,  the  undivided  half  of  a  certain  piece  or  farm  of 
land,  lying  in  the  town  and  county  of  Grand-Isle,  to  wit,  the  first  di- 
vision lots  drawn  to  the  rights  of  Thomas  Tolman,  Samuel  Herrick, 
and  John  Wood ;   and  that  the  said  Knight  and  Hyde,  in  and  by  said 

5  See  Lewis  v.  Cook,  35  N.  C.  193  (1851),  whicli  was  as  follows :  A.  and  his 
wife  joined  in  a  deed  to  B.  of  tlie  wife's  land,  which,  because  of  a  defect  in 
execution,  operated  only  as  a  conveyance  of  A.'s  life  estate.  B.  conveyed  to 
X.  "and  his  heirs"  by  deed  with  covenant  of  warranty.  By  levy  of  execution 
and  sale  thereunder  the  land  came  to  P.,  who  went  into  possession,  and  contin- 
ued therein  until  after  the  death  of  A.,  when  he  was  evicted  by  the  heirs  of 
Mrs.  A.  P.  then  sued  D.,  the  administrator  of  B.,  for  breach  of  the  covenant 
-of  warranty.    A  nonsuit  of  P.  was  held  erroneous. 


750  DERIVATIVE  TITLES  (Part  2 

deed,  covenanted  to  and  with  the  said  Hatch,  his  heirs  and  assigns, 
that  they  would  warrant  and  defend  the  premises  against  all  lawful 
claims  and  demands  whatsoever ;  that  afterwards  Hatch  by  deed  dated 
November  20,  1812,  for  a  valuable  consideration,  quit-claimed  the 
south  half  of  said  premises  to  the  plaintiff,  including  the  south  part  of 
the  aforesaid  lot  drawn  to  the  right  of  John  Wood ;  by  virtue  of  which 
the  plaintiff  entered  into  possession,  and  became  seized  and  possessed 
of  the  premises,  as  assignee  of  the  said  Hatch;  that  Reuben  Clapp, 
administrator  of  one  Alexander  Gordon,  afterwards,  on  the  26th  day 
of  January,  1822,  sued  out  a  writ  of  ejectment  against  the  plaintiff, 
demanding  the  seizin  and  possession  of  thirty  six  acres  of  the  east 
corner  of  said  lot,  drawn  to  the  right  of  John  Wood ;  and  such  pro- 
ceedings were  had  in  said  action,  that  in  January,  1828,  the  said  Clapp 
recovered  judgment  in  said  action  against  said  Beardsley  for  the 
seizin  and  possession  of  the  premises  demanded,  with  one  cent  dam- 
ages, and  his  cost,  taxed  at  $112.52;  and  afterwards  took  out  a  writ 
of  possession,  and  by  virtue  thereof  he  entered  upon,  and  took  pos- 
session of,  the  demanded  premises,  and  dispossessed  said  Beardsley 
of  the  same ;  and  averring  that  the  title  on  which  the  said  Clapp  recov- 
ered was  elder  and  better  than  the  title  derived  from  said  Knight  and 
Hyde  by  said  Hatch,  and  independent  of  the  same. 

In  the  second  count  the  conveyance  by  Knight  and  Hyde  to  Hatch, 
was  set  out  as  in  the  first.  It  was  then  alleged  that,  on  the  8th  day  of 
July,  1807,  Knight  and  Hyde  conveyed  the  undivided  half  of  the  prem- 
ises, to  the  plaintiff,  by  virtue  of  which  conveyance  the  plaintiff  en- 
tered into  possession ;  and  after  the  execution  of  the  deed  by  Knight 
and  Hyde  to  Hatch,  as  before  mentioned.  Hatch  also  went  into  pos- 
session of  an  undivided  half  of  the  premises;  whereby  the  plain- 
tiff and  Hatch  were  seized  as  tenants  in  common,  ahd  so  continued, 
until  the  20th  day  of  November,  1812,  when  they  made  partition  of 
the  premises,  by  which  the  plaintiff  became  seized  and  possessed  of  the 
south  half  thereof  in  severalty,  and  of  thirty  six  acres  on  the  south 
part  of  the  lot  drawn  to  the  right  of  John  Wood,  and  so  continued 
seized  and  possessed,  until  the  eviction  by  Clapp,  as  mentioned  in 
the  first  count. 

The  plaintiff  claimed  to  recover  of  the  defendant  the  value  of  the 
thirty  six  acres  from  which  he  had  been  evicted  by  Clapp,  and  all  the 
cost  and  charges  to  which  he  had  been  subjected  in  defending  the 
said  action  of  ejectment. 

The  defendant  pleaded  that  he  had  kept  and  performed  his  cov- 
enants according  to  the  form  and  effect  of  the  said  indenture  of  said 
covenant.  On  which  plea,  issue  was  joined.  On  the  trial  in  the  county 
court,  the  plaintiff  insisted  the  burden  of  proof  lay  on  the  defendant  to 
make  good  his  plea.  But  the  court  decided  that  the  plea  was  a  general 
denial  of  all  the  material  allegations  in  the  declaration,  and  put  the 
plaintiff  on  proof  of  every  material  fact  alleged.  The  plaintiff  then 
offered  in  evidence  the  deed  set  forth  in  his  declaration  from  Knisrht 


Ch.  6)  COVENANTS  FOR  TITLE  751 

to  Hatch,  which  was  read  without  objection;  and  the  deed  from  Hatch 
to  himself,  dated  the  20th  of  November,  A.  D.  1812,  acknowledged  on 
the  same  day,  and  recorded  on  the  9th  day  of  October,  1813.  This 
deed  had  no  seal  affixed  to  the  signature  of  the  grantor,  excepting  a 
scroll  or  circle  made  with  a  pen,  and  the  word  "seal"  written  within 
it.  The  defendant  objected  to  its  admission,  and  insisted  that  it  was 
not  sealed,  and,  therefore,  could  not  be  given  in  evidence  to  the  jury. 
The  plaintiff  insisted  that  it  was  sealed,  and  offered,  in  connection 
with  it,  parol  evidence  to  prove,  that  he  went  into  possession  of  the 
premises  therein  described,  under  it,  in  1812,  and  continued  in  pos- 
session under  it  till  1829,  when  he  was  evicted  as  set  forth  in  his  dec- 
laration, and  that  whether  the  deed  was  sealed  or  not,  was  a  question 
of  fact  for  the  jury.  The  court  determined  that  the  deed  was  not 
sealed,  and  that  whether  it  was  sealed  or  not,  was  a  question  of  law 
for  the  court  to  try,  and  not  the  jury;  and,  therefore,  excluded  it. 
The  plaintiff'  then  offered  a  quit-claim  deed  from  Knight  and  Hyde 
to  himself,  dated  in  1807,  of  one  equal  undivided  half  of  the  same 
premises  included  in  the  deed  from  Knight  and  Hyde  to  Hatch ;  and 
tendered  evidence  to  prove  that  the  plaintiff,  under  his  deed  from 
Knight  and  Hyde,  and  Hatch,  under  his  deed  from  the  same,  occu- 
pied said  premises  from  1807  to  1812,  as  tenants  in  common:  that  in 
1812,  Hatch  and  the  plaintiff  made  a  division  of  the  premises,  and  con- 
tinued ever  after  to  occupy  and  enjoy  the  same  in  severalty  under  said 
division;  that  by  said  division  the  land  mentioned  in  the  declaration 
was  set  apart  to  the  plaintiff;  and  that  he  held  and  occupied  the 
premises  as  his  own,  under  said  division,  from  1812  till  the  time  of  the 
eviction,  mentioned  in  the  declaration.  Which  deed  and  parol  evidence 
were  objected  to,  and  excluded  by  the  court,  who  directed  the  jury  to 
return  a  verdict  for  the  defendant;  which  they  accordingly  did.  To 
the  several  decisions  of  the  court  the  plaintiff  excejDted,  and  the  cause 
was  ordered  to  the  Supreme  Court. 

Williams,  J.  The  plaintiff  has  declared  against  the  defendant  in 
covenant.  The  declaration  contains  two  counts.  The  defendant  pleads 
performance,  and  tenders  an  issue  which  is  joined.  It  was  considered 
by  the  county  court  that  this  plea  put  the  plaintiff  on  proof  of  every 
material  fact  in  his  declaration.  •  The  plaintiff  contends,  that,  under 
this  issue,  his  derivative  title  was  not  denied,  nor  the  character  in 
which  he  sued.  But  if  the  plea  required  the  plaintiff  to  shew  a  breach 
of  the  covenant  declared  on,  and  this  was  not  questioned,  he  must,  to 
shew  such  breach,  prove  an  eviction  of  some  one  holding  under  Hatch ; 
and  this  made  it  necessary  to  prove  a  conveyance  from  Hatch  to  him- 
self. The  plaintiff  does  not  sue  as  assignee,  nor  in  the  right  of  another, 
as  an  executor,  or  administrator,  or  assignee  of  a  bankrupt,  in  which 
case  his  character  as  assignee  would  not  be  denied  under  the  plea. 
But  he  sues  as  on  a  covenant  made  with  him,  and  coming  to  him  with 
the  land,  by  virtue  of  a  deed  from  Hatch.  The  eviction  of  the  plain- 
tiff would  be  no  breach  of  the  defendant's  covenant  with  Hatch,  unless 


752  DERIVATIVE  TITLES  (Part  2" 

plaintiff  claimed  title  to  the  land  through  Hatch.  Hence  it  was  incum- 
bent on  the  plaintiff  to  show  a  conveyance  from  Hatch,  and  this  brings 
in  question  the  validity  of  the  instrument  which  was  offered  as  Hatch's 
deed  to  plaintiff.  It  seems  that  it  was  objected  to,  and  excluded  as  not 
having  been  sealed.®     *     *     * 

The  instrument,  therefore,  offered  in  evidence  as  the  deed  of  Hatch,, 
was  not  a  deed  or  conveyance  of  land,  as  it  wanted  one  of  the  essential 
requisites  to  constitute  it  a  deed.  The  paper  from  Hatch  to  the  plain- 
tiff', having  been  rightly  excluded  by  the  court,  there  is  no  other  ground 
on  which  the  plaintiff'  can  recover  of  the  defendant  on  the  covenants 
contained  in  the  defendant's  deed  to  Hatch.  The  argument  that  the 
plaintiff"  was  in  possession,  and,  therefore,  might  avail  himself  of  the 
covenant  as  running  with  the  land,  is  wholly  destitute  of  foundation. 
His  possession,  as  against  Hatch,  may  have  been  adverse,  so  that  he 
was  acquiring  a  title  by  the  statute  of  limitations  as  against  him ;  but 
if  so,  it  would  be,  at  least,  singular,  if  he  could  acquire  a  title  as 
against  Hatch  by  a  trespass,  and,  at  the  same  time,  by  the  same  tres- 
pass, acquire  a  right  to  Hatch's  claim  against  the  defendant  on  the  cov- 
enants in  his  deed.  Although  a  deed  from  Hatch  to  the  plaintiff  might 
under  some  circumstances  be  presumed,  yet,  as  presumptions  are  made 
to  quiet  men  in  possession,  I  do  not  know  that  it  has  ever  been  con- 
tended before,  that  they  would  create  a  right  of  action  on  the  deed 
presumed.  A  deed  might  be  presumed  to  give  a  legal  origin  to  a  pos- 
session; but  an  instrument  not  under  seal  cannot  be  presumed  to 
be  a  deed  for  the  purpose  of  giving  an  action  of  covenant  thereon,  or 
an  action  of  covenant  on  a  deed  farther  back  in  the  chain  of  title.  It 
seems  that  the  plaintiff  had  a  quit-claim  deed  from  the  defendant  and 
Hyde,  dated  8th  July,  1807,  of  one  undivided  moiety  of  the  land  in 
dispute.  If  he  was  not  in  possession  under  that  deed,  he  was  in  with- 
out title,  and  can  have  no  claim  upon  the  defendant  if  he  has  not  kept 
his  covenant  with  Hatch,  for  the  other  moiety  of  the  same  premises. 

It  is  said  the  evidence  on  the  second  count  was  excluded  by  the  court. 
This  count  appears  to  be  decidedly  bad ;  and  although  the  court  may 
have  erred  in  excluding  the  testimony  altogether,  and  the  regular 
.course  might  have  been  to  have  admitted  the  testimony,  leaving  the 
defendant  to  move  in  arrest,  or  bring  his  writ  of  error,  yet  this  court 
would  not,  on  that  account,  grant  a  new  trial,  when  we  should  be  un- 
der obligation  to  arrest  the  judgment  thereon  on  account  of  the  insuffi- 
ciency of  the  declaration.  But  it  will  be  observed  that  notwithstanding 
the  pleader  in  framing  the  declaration  avoided  any  distinct  reference 
to  the  instrument  which  purported  to  be  a  deed  from  Hatch  to  the 
plaintiff,  which  was  excluded  as  not  being  sealed,  yet,  to  avail  himself 
of  the  covenant  made  with  Hatch,  and  entitle  himself  to  shew  the 
eviction  as  a  breach  of  that  covenant  injurious  to  him,  he  declares  that 

6  The  portion  of  the  opinion  in  which  the  court  considered  the  sufficiency  of 
the  deed  from  Hatch  to  the  plaintifC  is  omitted. 


Ch.  6)  COVENANTS  FOR  TITLE  753' 

he  was  possessed  of  the  part  of  which  he  was  evicted,  as  assignee  6f 
Hatch.  To  support  this  count,  therefore,  it  was  necessary  for  him 
to  show  a  legal  assignment  from  Hatch,  and  if  he  failed  to  introduce 
a  regular  deed  from  Hatch  to  himself,  the  count  would  fail  for  want 
of  proof.  This  count,  therefore,  as  well  as  the  other,  depended  upon  the 
validity  of  Hatch's  conveyance  to  the  plaintiff;  and  that  being  ex- 
cluded, all  other  testimony  was  irrelevant,  and  was  properly  rejected. 
If  neither  Hatch  nor  his  grantee  were  evicted  from  the  premises,  the 
plaintiff  has  not  become  liable  on  his  covenant  to  Hatch.  If  the  plain- 
tiff" was  evicted  from  his  undivided  part,  he  is  without  remedy  at  law, 
as  his  title  to  an  undivided  moiety  was  nothing  more  than  a  quit-claim 
deed  from  the  defendant  and  Hyde,  on  which  he  has  not  set  up  any 
claim;  and  his  title  to  the  other  moiety  was  under  a  writing  from 
Hatch  which  the  Court  consider  as  no  legal  conveyance. 

On  every  view  which  we  have  been  able  to  take  of  the  case,  we  can 
see  no  remedy  for  the  plaintiff  at  law;  and  the  judgment  of  the  coun- 
ty court  must  be  affirmed.    Judgment  affirmed.'^ 


ST.  CLAIR  V.  WILLIAMS. 
(Supreme  Court  of  Ohio,  1836.    7  Ohio,  110,  pt.  2,  30  Am.  Dec.  194.) 

This  is  an  action  of  covenant  reserved  from  the  county  of  Ham- 
ilton. 

Williams,  the  defendant,  conveyed  a  tract  of  land,  with  warranty, 
to  Davis,  in  1816.  Davis  afterward  conveyed  the  same  land  to  St. 
Clair,  who  died  seized  in  1820,  leaving  the  plaintiff  his  widow,  to  whom 
the  premises  were  set  off  as  dower.  She  has  been  evicted  by  a  re- 
covery in  ejectment,  under  a  paramount  title,  and  she  brings  this 
action  against  Williams,  upon  the  warranty  in  his  deed  to  Davis,  claim- 
ing that  it  passed  with  the  land  to  her. 

Lank,  J.  The  question  arising  in  this  case  is,  whether  the  right  of 
action  upon  a  covenant  of  warranty  annexed  to  a  conveyance  in  fee, 
passes  to  one  who  holds  but  an  estate  for  life  in  the  land.  It  is  no  sub- 
ject of  doubt  that  an  assignee  is  entitled  to  the  benefits  of  all  cove- 
nants running  with  the  land.  Backus'  Adm'rs  v.  McCoy,  3  Ohio,  219, 
17  Am.  Dec.  585 ;  King  v.  Kerr's  Adm'rs,  5  Ohio,'  156,  22  Am.  Dec. 
777.  Nor  is  it  doubted  where  a  covenant  running  with  the  land  is 
divisible  in  its  nature,  as  if  the  entire  interest  of  separate  parts  of  land 
pass  to  different  individuals,  that  a  right  of  action  accrues  to  each 
party,  to  recover  his  proportion  of  the  warranty.  Van  Home  v.  Grain, 
1  Paige  (N.  Y.)  455  ;  Astor  v.  Miller,  2  Paige  (N.  Y.)  78;  Touchstone, 
199;  Co.  Lit.  385,  386.  But  a  plain  distinction  is  made  between  the 
holder  of  a  part  of  the  land,  and  the  holder  of  a  part  of  the  estate ; 

T  See  Deason  v.  Findley,  145  Ala,  407,  40  South.  220  (1906),  ace 
Aig.Prop. — 48 


754  DERIVATIVE  TITLES  (Part  2 

the  former  may  vouch  as  assignee,  or  bring  warrantia  chartae ;  the  lat- 
ter has  the  benefit  of  the  warranty  by  aid  prayer,  or  by  the  voucher 
of  him  who  holds  the  remainder,  Co.  Lit.  385,  a;  4  Dane,  51 ;  Wood's 
Conveyancing,  Z7Z.  The  same  distinction  is  carried  into  the  modern 
action  of  covenant.  The  assignee,  upon  whom  is  cast  the  benefit  or 
the  obHgation  of  covenants,  is  he  who  holds  the  whole  estate  or  term. 
Doug.  183 ;  1  East,  502.  These  principles  settle  the  present  suit.  The 
plaintiff  could  not  vouch  as  assignee,  nor  have  warrantia  chartae  under 
the  ancient  law,  nor  can  she  sustain  an  action  of  covenant,  because  she 
does  not  hold  the  whole  estate.  The  right  of  action  on  the  warranty 
passes  to  the  heirs,  and  her  remedy  is  by  a  new  assignment  of  dower. 
Judgment  for  defendant.* 


LEWES  V.  RIDGE. 

(Court  of  Common  Pleas,  1601.     Cro.  Eliz.  863.) 

Covenant.  The  defendant,  being  seised  of  land  in  fee,  let  it  for 
life,  remainder  for  life,  rendering  rent.  He  afterwards  acknowledged 
a  statute;  and  after  that  by  indenture  bargained  and  sold  the  rever- 
sion ;  and  covenanted  with  the  bargainee,  his  heirs,  and  assigns,  that 
it  should  be  discharged  within  two  years  of  all  statutes,  charges  and 
incumbrances,  excepting  the  estates  for  life.  The  statute  is  extended, 
and  thereupon  this  reversion  and  rent  was  extended.  The  bargainee 
grants  this  reversion  to  the  plaintifif,  who,  for  not  discharging  of  this 
statute,  brings  covenant.  And  all  this  matter  being  disclosed  by  the 
count,  it  was  thereupon  demurred.  The  question  principally  moved 
was,  whether  the  plaintifif,  as  assignee,  shall  have  benefit  of  this  cove- 
nant made  to  the  bargainee  by  the  common  law,  or  by  the  32  Hen. 
Vni,  c.  34?  But  because  the  covenant  was  broken  before  the  plain- 
tifif's  purchase,  the  land  being  then  in  extent,  and  so  a  thing  in  action, 
which  could  not  be  transferred  over,  it  was  adjudged  for  the  defend- 
ant that  the  action  was  not  maintainable  against  him. 

And  here  the  Court  held  clearly,  that  the  32  Hen.  VIH,  c.  34, 
doth  not  extend  to  covenants  upon  estates  in  fee  or  in  tail,  but  only 
upon  leases  made  for  life  or  for  years,  and  therefore  this  assignee  was 
out  of  the  statute^  But  for  the  other  matter  principally  it  was  ad- 
judged ut  supra.^ 

8  See  McClure's  Ex'rs  v.  Gamble,  27  Pa.  288  (1856) ;  White  v.  Whitney,  3 
Mete.  (Mass.)  81  (1841). 

9  In  Lucy  v.  Levington,  2  Lev.  26  (1671),  the  executor  of  the  grantee  sued  the 
grantor  for  breach  of  a  covenant  for  quiet  enjoyment,  broken  during  the  life- 
time of  the  grantee.     Held,  the  action  was  properly  brought  by  the  executor. 


Ch.  6)  COVENANTS  FOR  TITLE  755 

KINGDOM  V.  NOTTLE. 
(Court  of  King's  Bench,  1813.    1  Maule  &  S.  355.) 

This  action  was  brought  by  the  plaintiff,  as  executrix  of  Richard 
Kingdon;'  and  the  declaration  stated,  that  by  indentures  of  lease  and 
release  of  the  11th  and  12th  of  May,  1780,  the  defendant  conveyed  to 
R.  Kingdon  in  fee  a  4th  part  of  certain  lands  therein  particularly  de- 
scribed, with  a  proviso  for  redemption  upon  payment  of  £450;  and 
that  the  defendant  covenanted  for  himself,  his  heirs,  executors,  and 
administrators,  with  R.  Kingdon,  that  he  the  defendant  was  at  the 
time  of  the  execution  of  the  indenture  seized  of  and  in  the  premises 
of  a  good  and  indefeasible  estate  of  inheritance  in  fee  simple:  and  that 
he  had  good  right  to  convey  the  same  to  R.  Kingdon  and  his  heirs : 
and  farther,  that  the  defendant  would  from  time  to  time,  upon  every 
reasonable  request  of  R.  Kingdon,  his  heirs  or  assigns,  but  at  the  de- 
fendant's costs,  execute  any  farther  conveyance  for  the  purpose  of 
assuring  and  confirming  the  premises  to  R.  Kingdon,  his  heirs  and  as- 
signs ;  and  then  the  following  breaches  were  assigned :  first,  tliat  the 
defendant  was  not  seized  in  fee  at  the  time  of  the  execution  of  the 
indenture :  secondly,  that  the  defendant  had  not  at  that  time  good  right 
to  convey :  lastly,  that  the  plaintiff,  as  executrix  after  the  death  of 
R.  Kingdon,  made  a  reasonable  request  to  the  defendant  to  execute 
an  indenture  between  the  defendant  of  the  first  part,  the  plaintiff  of 
the  second  part,  and  Samuel  Anstice  of  the  third  part,  intended  to 
be  a  release  of  the  premises  for  suffering  a  common  recovery  for  the 
better  assuring  and  confirming  the  premises  to  the  uses  mentioned  in 
the  deed ;  and  tendered  the  same  to  the  defendant  for  execution,  but 
the  defendant  refused  to  execute. 

The  defendant  demurred  to  the  first  and  second  breaches,  assigning 
for  causes  that  they  are  assigned  too  generally,  and  are  not  suffi- 
ciently precise  and  certain,  and  that  it  does  not  appear  that  R.  King- 
don sustained  or  could  have  sustained  any  damage  by  the  said  breaches 
of  covenant,  or  either  of  them,  nor  that  he  was  at  any  time  interrupted 
or  disturbed  in  his  enjoyment  of  the  premises  conveyed  to  him  by  the 
defendant;  nor  that  the  said  Elizabeth  has  or  claims  any  interest  in 
the  premises,  or  that  she  is  heir  at  law,  or  assignee  of  the  same,  or  any 
part  thereof.  He  demurred  also  to  the  last  breach,  assigning  for  causes, 
that  it  does  not  appear  that  the  said  Elizabeth  hath  or  claims  to  have 
any  interest  in  the  premises,  as  assignee  or  otherwise,  of  R.  Kingdon, 
nor  to  what  person,  or  for  whose  use  the  deed  of  release  was  intended 
to  enure,  or  why  or  for  what  reason  Samuel  Anstice  was  made  a  party 
thereto,  nor  that  the  said  deed  of  release  was  a  reasonable  convey- 
ance or  assurance  in  that  behalf :  and  also  for  that  the  said  last  men- 
tioned breach  of  covenant  cannot  by  law  be  joined  in  the  same  dec- 
laration with  the  other  breaches  of  covenant  in  the  said  declaration  as- 
signed:  and  also  for  that  the  said  declaration  as  to  the  said  breach 


756  DERIVATIVE  TITLES  (Part  2 

of  covenant  lastly  assigned  is  in  various  other  respects  insufficient,  in- 
formal, and  defective.     Joinder. 

IvORD  EllEnborough,  C.  J.  This  is  a  case  in  which  a  person  may 
have  formed  his  opinion  from  what  is  to  be  found  in  a  book  of  very 
excellent  authority,  I  allude  to  Comyn's  Digest,  in  which  it  is  laid  down 
generally  that  if  a  man  covenant  with  B.  upon  a  grant  or  conveyance  of 
the  inheritance,  his  executor  may  have  covenant  for  damages  upon  a 
breach  committed  in  the  lifetime  of  his  testator.  But  when  that  posi- 
tion comes  to  be  compared  with  Lucy  v.  Levington,  which  is  the 
authority  there  cited  in  support  of  it,  it  will  be  found  not  to  be  borne 
out  by  that  case  in  its  generality ;  for  in  that  case  there  was  an  evic- 
tion in  the  life-time  of  the  testator,  and  therefore  the  damages  in 
respect  of  such  eviction,  for  which  the  action  was  then  brought,  were 
properly  the  subject  of  suit  and  recovery  by  the  executor;  and  nothing 
descended  to  the  heir.  But  in  this  case  there  is  no  other  damage  than 
such  as  arises  from  a  breach  of  the  defendant's  covenant  that  he  had  a 
good  title,  and  there  is  a  difficulty  in  admitting  that  the  executrix  can 
recover  at  all,  without  also  allowing  her  to  recover  to  the  full  amount 
of  the  damages  for  such  defect  of  title;  and  in  that  case  a  recovery 
by  her  would  bar  the  heir ;  for  I  apprehend  the  heir  could  not  after- 
wards maintain  another  action  upon  the  same  breach.  Had  the  breach 
here  been  assigned  specially  with  a  view  to  compensation  for  a  damage 
sustained  in  the  life-time  of  the  testator,  and  so  as  to  have  left  a  subject 
of  suit  entire  to  the  heir,  this  action  might  have  gone  clear  of  the  diffi- 
culty, because  then  it  would  not  operate  as  a  bar  to  the  heir;  but 
framed  as  it  now  is,  it  seems  to  me  that  it  would  operate  as  a  bar  to  his 
action. 

It  is  certainly  a  new  point;  and  if  I  thought,  that  more  author- 
ities could  be  found  than  what  have  been  cited,  which,  however,  from 
the  industry  of  the  gentlemen  who  have  argued  the  case,  is  not  very 
probable,  I  should  have  paused.  But  what  has  been  cited  from  Co. 
Litt.,  and  the  other  authorities,  that  the  executor  of  a  person  who  died 
seized  of  a  rent  could  not  maintain  an  action  to  recover  the  arrears 
incurred  in  the  life-time  of  his  testator,  inasmuch  as  he  could  not 
represent  his  testator  as  to  any  contracts  relating  to  the  freehold  and 
inheritance,  is  in  a  great  degree  an  authority  to  show  that  in  the  pres- 
ent case  the  executrix  does  not  stand  in  a  situation  to  take  advantage 
of  this  breach  of  covenant.  Therefore  on  the  principle  of  what  is 
here  laid  down,  and  in  the  absence  of  any  damage  to  the  testator,  which, 
if  recovered,  would  properly  form  a  part  of  his  personal  assets,  I  do 
not  know  how  to  say  that  this  action  is  maintainable. 

LE  Blanc,  J.  This  action  is  brought  by  the  executrix  to  increase 
the  personal  estate  of  the  testator.  The  difficulty  arises  from  its  being 
assigned  as  a  breach  of  covenant  in  the  life-time  of  the  testator.  The 
breach  assigned  is  in  not  having  a  good  title.  But  how  is  that  breach 
shown  to  have  been  a  damage  to  the  testator.  It  is  not  alleged  that  the 
estate  was  thereby  prejudiced  during  the  life-time  of  the  testator;  and 


Ch.  6)  COVENANTS  FOR  TITLE  757 

if  after  his  decease  any  damage  accrued,  that  would  be  a  matter  which 
concerns  the  heir.  The  distinction  which  attends  real  and  personal  cov- 
enants with  respect  to  the  course  in  which  they  go  to  the  representa- 
tives of  the  person  with  whom  the  covenants  are  made,  is  a  clear 
'one;  real  covenants  run  with  the  land,  and  either  go  to  the  assignee 
of  the  land,  or  descend  to  the  heir,  and  must  be  taken  advantage  of 
by  him  alone;  but  personal  covenants  must  be  sued  for  by  the  exec- 
utor. Now  this  is  a  covenant  on  which  after  one  breach  has  been 
assigned  and  a  recovery  had  thereon,  the  party  cannot  again  recover. 
It  is  not  like  a  covenant  for  not  repairing,  for  a  breach  of  which  dam- 
ages may  be  recovered  now,  and  again  hereafter,  and  so  toties  quoties ; 
although  even  in  that  case  there  is  always  a  difficulty  in  apportioning 
the  damages.  But  here  no  breach  from  which  a  damage  accrued  to 
the  testator  is  stated  at  all.  Yet  the  action  is  brought  to  increase  the 
personal  estate,  which  belongs  to  the  executor ;  when  the  estate  itself, 
such  as  it  is,  has  come  to  the  heir. 

Bayle;y,  J.  The  testator  might  have  sued  in  his  life-time ;  but  hav- 
ing forborne  to  sue,  the  covenant  real  and  the  right  of  suit  thereon, 
devolved  with  the  estate  upon  the  heir.  If  this  were  not  so,  and  the 
executrix  was  permitted  to  take  advantage  of  this  breach  of  covenant, 
she  would  be  recovering  damages  to  be  afterwards  distributed  as  per- 
sonal assets,  for  that  which  is  really  a  damage  to  the  heir  alone ;  and 
yet  such  recovery  would  be  a  complete  bar  to  any  action  which  the 
heir  might  bring.  The  case  of  Lucy  v.  Levington  struck  me  as  a 
strong  authority  for  the  defendant :  because  in  that  case  it  appears 
there  was  an  actual  damage  accruing  to  the  testator  by  the  eviction, 
whereby  he  was  deprived  of  the  rents  and  profits  during  his  life,  and 
of  course  the  personal  estate  was  so  far  damnified.  There,  as  I  have 
before  observed,  if  the  executor  could  not  have  sued,  no  other  person 
could,  because  the  testator  having  been  evicted,  there  could  be  no  heir 
of  the  land,  and  that  was  given  as  a  reason  why  the  action  was  holden 
to  be  maintainable. 

Per  Curiam.     Judgment  for  defendant. 


KINGDON  V.  NOTTLE. 

(Court  of  King's  Bench,  1815.    4  Maule  &  S.  53.) 

<» Covenant  by  the  plaintiff  as  devisee  of  Richard  Kingdon;  and  the 
plaintiff  declares  that  by  indentures  of  lease  and  release  of  the  11th 
and  12th  of  May,  1780,  the  defendant  conveyed  to  R.  Kingdon  in  fee 
a  fourth  part  of  certain  lands  therein  particularly  described,  with  a  pro- 
viso for  fedemption  upon  payment  of  £450;  and  that  the  defendant 
covenanted  for  himself,  his  heirs,  executors,  and  administrators,  with 
R.  Kingdon,  that  he  the  defendant  was  at  the  time  of  the  execution  of 
the  indenture  seized  of  and  in  the  premises  of  a  good  and  indefeasible 


758  DERIVATIVE  TITLES  (Part  2 

estate  of  inheritance  in  fee-simple;  and  that  he  had  good  right  to 
convey  the  same  to  R.  Kingdon  and  his  heirs ;  and  then  the  plaintiff 
avers  that  R.  Kingdon,  on  the  3d  of  May,  1791,  duly  made  his  will, 
&c.  and  thereby  devised  the  same  premises  to  her  in  fee,  and  died 
seised,  and  that  she  (the  plaintiff)  entered  into  the  premises,  and  became 
and  was  and  continually  hath  been  possessed  thereof,  and  seized  of 
and  entitled  to  all  such  estate  and  interest  of  and  in  the  same  as  R. 
Kingdon  had  in  his  lifetime,  and  at  the  time  of  his  death,  and  assigns 
for  breach,  1st,  That  the  defendant,  at  the  time  of  the  execution  of  the 
indenture,  was  not  seized,  &:c. ;  2dly,  That  he  had  not  good  right  to 
convey  to  R.  Kingdon  and  his  heirs,  &c.  And  so  the  plaintiff  says,  that 
by  reason  thereof  the  premises  are  of  much  less  value,  to  wit,  less  by 
£2000.  to  the  plaintiff  than  they  otherwise  would  be,  and  that  she 
hath  not  been  able  to  sell,  and  hath  been  prevented  and  hindered  from 
selling  the  same,  for  so  large  a  price  or  so  beneficially  and  advan- 
tageously as  she  otherwise  might  have  done.  And  so  she  saith  that 
the  defendant  hath  not  kept  his  covenant  so  made  with  R.  Kingdon, 
but  to  keep  the  same  with  R.  Kingdon  in  his  lifetime,  and  the  plaintiff, 
since  his  death,  hath  wholly  refused. 

Demurrer  assigning  for  cause,  Ist^  That  it  appears  by  the  declara- 
tion that  the  supposed  breaches  of  covenant  therein  assigned  were 
committed  in  the  lifetime  of  R.  K.,  before  tlie  plaintiff  had  any  estate 
or  interest  in  the  premises ;  and  also,  that  it  does  not  appear  by  the 
declaration  that  R.  K.  was  at  any  time  disturbed  or  interrupted  in  the 
enjoyment  of  the  premises  by  the  defendant  or  any  other  person,  or 
sustained  or  could  have  sustained  any  damage  by  the  same  supposed 
breaches  of  covenant  or  either  of  them,  and  also  for  that  it  is  not  al- 
leged that  the  plaintiff  hath  at  any  time  since  the  death  of  R.  K. 
bfeen  interrupted  or  disturbed  in  the  enjoyment  of  the  premises,  or 
any  part  thereof,  or  hath  sustained  any  damage  from  the  supposed 
breaches  of  covenant  or  either  of  them ;  and  also  that  it  does  not  ap- 
pear that  any  person  hath  refused  to  purchase  the  premises  on  ac- 
count of  the  supposed  breaches  of  covenant,  and  also  that  the  allega- 
tions that  the  premises  are  of  much  less  value  than  they  otherwise 
would  be,  and  that  the  plaintiff  hath  not  been  able  to  sell,  and  hath 
been  prevented  and  hindered  from  selling  the  same  for  so  large  a 
price  or  so  beneficially  and  advantageously  as  she  otherwise  might  have 
done,  are  too  general,  and  do  not  give  the  defendant  sufficient  notice 
of  the  supposed  damage. 

Lord  Ellenborough,  C.  J.  The  rule  with  respect  to  the  executor's 
right  to  sue  upon  breaches  of  contract  made  with  the  testator  was  con- 
sidered in  the  former  case  of  Kingdon  v.  Nottle  as  subject  to  some 
qualification;  and  in  a  still  more  recent  case,  [Chamberlain  v.  William- 
son, 2  M.  &  S.  408,]  it  was  considered  that  he  could  only  Recover  in 
respect  of  such  breach  as  was  a  damage  to  the  personal  estate.  But 
here  the  covenant  passes  with  the  land  to  the  devisee,  and  has  been 
broken  in  the  time  of  the  devisee,  for  so  long  as  the  defendant  has 


Ch.  6)  COVENANTS  FOR  TITLE  759 

not  a  good  title,  there  is  a  continuing  breach  and  it  is  not  like  a  cove- 
nant to  do  an  act  of  solitary  performance,  which,  not  being  done,  the 
covenant  is  broken  once  for  all,  but  is  in  the  nature  of  a  covenant 
to  do  a  thing  toties  quoties,  as  the  exigency  of  the  case  may  require. 
Here,  according  to  the  letter,  there  was  a  breach  in  the  testator's  life- 
time ;  but  according  to  the  spirit,  the  substantial  breach  is  in  the  time 
of  the  devisee,  for  she  has  thereby  lost  the  fruit  of  the  covenant  in 
not  being  able  to  dispose  of  the  estate. 

Le  Blanc,  J.  If  the  covenant  is  to  cease  with  the  breach  of  it, 
then  if  it  be  broken,  and  the  covenantee  die  immediately  after,  the  cove- 
nant will  be  gone;  and  yet  the  injury  arising  from  the  breach  would 
accrue  altogether  to  the  devisee. 

Dampier,  J.  This  is  a  covenant  which  runs  with  the  land ;  but  if  it 
may  be  broken  but  once,  and  ceases  eo  instanti  tliat  it  is  broken,  how 
can  it  be  a  covenant  which  runs  with  the  land? 

Fe,r  Curiam.    Judgment  for  the  plaintiff.^* 


MITCHELL  V.  WARNER. 

(Supreme  Court  of  Errors  of  Connecticut,  1825.     5  C6nn.  497.) 

This  was  an  action  on  the  covenants  of  warranty  in  a  deed  of  land. 
The  plaintiff  declared,  that  the  defendant,  Curtis  Warner,  on  the  30th 
of  May,  1817,  for  the  consideration  of  $1500,  by  his  deed  duly  ex- 
ecuted, granted  and  sold  to  George  Welton  a  certain  piece  of  land  in 
said  deed  described  as  lying  in  Roxbury,  on  Jack's  brook,  .containing 
two  acres,  with  a  dwelling-house,  clothier's  works,  &c.  standing  there- 
on, bounded  South  on  Roswell  Warner's  land,  &c. ;  that  in  and  by 
said  deed,  the  defendant  did  for  himself,  his  heirs,  executors  and  ad- 
ministrators, covenant  with  said  Welton,  his  heirs  and  assigns,  that  at 
and  until  the  ensealing  of  said  deed,  he  was  well  seised  of  the  prem- 
ises as  a  good  indefeasible  estate  in  fee-simple,  and  that  he  had  good 
right  to  bargain  and  sell  the  same,  in  the  manner  and  form  as  was 
in  said  deed  by  him  before  written,  and  that  the  same  was  free  from 
all  incumbrances ;  that  the  defendant,  in  and  by  said  deed,  did  cove- 
nant and  bind  himself  and  his  heirs  forever  to  warrant  and  defend 
said  granted  and  bargained  premises  to  the  said  Welton,  his  heirs  and 
assigns,  against  all  claims  and  demands  whatsoever;  that  on  the  7th 
of  March,  1822,  Welton  and  the  defendant,  by  quit-claim  deed,  by 
them  executed,  for  a  valuable  consideration,  released  to  the  plaintiff 
the  same  land,  buildings  and  privileges,  which  the  defendant  had  con- 
veyed to  Welton,  by  the  first  mentioned  deed,  and  the  plaintiff  became 

10  Ace. :  King  v.  Jones,  5  Taunt.  418  (1814),  where  ttie  covenant  sued  on  by 
tlie  heir  of  the  grantee  was  for  further  assurance.  The  grantee  in  his  lifetime 
had  called  upon  the  covenantor  to  levy  a  tine,  Avhich  request  had  been  denied. 

But  see  Spoor  v.  Green,  L.  R.,  9  Ex.  99  (1874) ;  Turner  v.  Moon,  [1901]  2  Ch. 
825. 


760  DERIVATIVE  TITLES  (Part  2 

vested  with  such  right  and  title  thereto  as  Welton  had  acquired,  and 
was  the  assignee  of  all  the  covenants  in  the  defendant's  deed  to  Wel- 
ton, and  had  good  right  to  take  benefit  thereof. 

Breaches  of  these  covenants  were  then  assigned  as  follows:  That 
at  the  time  when  the  defendant  made  and  executed  his  deed  to  Welton, 
he,  the  defendant,  was  not  well  seised  of  the  premises,  as  a  good  in- 
defeasible estate  in  fee-simple,  and  had  not  good  right  to  bargain  and 
sell  the  same,  in  manner  and  form  as  stated  and  set  forth  in  said 
deed,  and  the  same  was  not  free  from  all  incumbrances;  that  the 
defendant  has  not  kept  and  performed  his  covenant  to  warrant  and 
defend  the  premises  to  the  plaintiff,  but  has  broken  the  same,  for 
that  long  before  and  on  the  30th  day  of  May,  1817,  and  at  the  time 
when  the  defendant  made,  executed  and  delivered  his  deed  to  Welton, 
one  Roswell  Warner  was  well  seised  and  possessed,  in  his  own  right 
in  fee-simple,  of  the  right  and  privilege  of  turning  the  water  of  Jack's 
brook  in  said  deed  mentioned,  (and  which  brook  or  stream  of  water 
runs  through  and  upon  said  land,  and  was,  at  the  time  of  the  convey- 
ance by  the  defendant  to  Welton,  and  ever  since  has  been,  of  great  use 
in  carrying  on  the  business  of  a  clothier's  shop  in  said  deed  described, 
also  of  great  value  and  use  in  carrying  a  carding-machine  and  other 
water  works,  *which  the  plaintiff  has,  since  he  took  tlie  deed  from 
Welton  and  the  defendant,  erected  on  said  land,  and  by  said  stream,) 
from  a  certain  dam,  which  had  been  previously  erected  across  said 
brook  upon  said  land,  on  to  the  meadow  of  said  Roswell  Warner  be- 
low, so  much  thereof  as  should  be  necessary  for  the  purposes  of  wa- 
tering the  same ;  that  on  the  1st  of  April,  1822,  said  Roswell  Warner, 
by  virtue  of  such  right  and  privilege,  entered  upon  said  land,  and  di- 
verted the  water  from  said  stream,  at  said  dam,  and  turned  it  upon 
his  said  meadow,  to  water  the  same,  and  has  ever  since  used  said 
stream  for  tliat  purpose;  by  means  whereof,  the  plaintiff  has  wholly 
lost  the  benefit  of  said  stream,  and  the  use  of  said  clothier's  shop, 
carding  machine  and  other  water-works  thereon;  and  so  the  said 
Roswell  Warner  had  disseised  and  dispossessed  the  plaintiff  of  said 
water-works  and  of  tlie  benefit  of  said  stream. 

The  defendant  pleaded,  that  at  the  time  of  executing  said  deed  to 
Welton,  he,  the  defendant,  was  well  seised  of  the  premises  in  said  deed 
described,  and  had  good  right  to  convey  tlie  same,  as  in  said  deed  set 
forth  ;  that  the  premises  were  free  from  all  incumbrances  whatsoever ; 
and  that  the  defendant  has  warranted  and  defended  the  premises  to 
the  plaintiff  against  all  claims  and  demands,  according  to  the  form 
and  effect  of  said  deed,  and  of  the  several  covenants  therein  contained. 
On  this  plea  issue  was  joined. 

On  the  trial  of  the  cause  at  Litchfield,  February  term,  1824,  before 
Hosmer,  Cli.  J.,  the  plaintiff,  after  proving  the  deeds  mentioned  in 
the  declaration,  adduced  evidence  to  prove  the  right  of  Roswell  Warner 
to  turn  the  water  of  Jack's  brook  on  to  his  own  land,  and  the  exercise 
of  that  right  to  the  plaintiff's  damage,  which  constituted  the  only 


Ch.  6)  COVENANTS  FOR  TITLE  761 

breaches  relied  upon  of  the  covenants  in  the  defendant's  deed  to  Wel- 
ton.  To  the  competency,  as  well  as  to  the  relevancy  of  tliis  evidence, 
the  defendant  objected.  The  Chief  Justice,  in  his  charge  to  the  jury, 
expressed  the  following  opinion : 

"First,  as  to  the  covenant  of  seisin.  The  facts  adduced  in  evidence 
did  not  prove  it  to  have  been  broken;  the  right  claimed  to  exist  in 
Roswell  Warner  being  an  incorporeal  hereditament  only,  and  like  a 
right  of  way  or  of  turbary,  not  any  part  of  the  freehold,  but  perfectly 
compatible  with  the  covenant  of  seisin,  on  which  the  plaintiff  has  de- 
clared. 

"Secondly,  as  to  the  covenant  against  incumbrances.  The  declara- 
tion having  alleged,  by  way  of  breach,  that  the  premises  granted  'were 
not  free  from  all  incumbrances,'  and  nothing  more,  under  this  nega- 
tive averment,  without  any  specification  of  the  nature  of  the  incum- 
brance complained  of,  the  proof  offered  was  inadmissible.  It  should 
have  been  definitely  set  forth,  to  appraise  the  defendant  of  its  nature, 
and  give  him  the  requisite  information  to  prepare  himself  for  a  de- 
fence. Further;  the  actual  exercise  of  the  right  of  turning  water 
from  Jack's  brook,  by  Roswell  Warner,  was  not  an  incumbrance  war- 
ranted against;  but  the  incumbrance  consisted  in  the  incorporeal  her- 
editament, viz.  the  right  of  turning  the  water;  the  covenant,  from 
its  nature,  being  broken  instantaneously,  on  the  delivery  of  the  deed, 
or  not  at  all.  And  if  the  exercise  of  the  right  were  an  incumbrance, 
it  was  not  alleged  to  be  so  in  breach  of  the  covenant  aforesaid. 

"Thirdly,  as  to  the  covenant  of  warranty.  The  facts  stated,  by  the 
plaintiff,  if  proved,  did  not  amount  to  an  eviction  in  breach  of  the 
aforesaid  covenant;  but  if  they  were  established,  by  the  evidence,  the 
jury  must  find  for  the  plaintiff,  and  leave  the  defendant  to  his  legal 
remedy,  the  facts  appearing  on  the  record. 

"Fourthly,  as  to  the  damages.  As  no  breach  of  the  covenant  of  war- 
ranty was  alleged,  but  of  a  disturbance  only,  the  jury  must  give  the 
plaintiff  reasonable  damages  for  the  actual  injury." 

The  jury  returned  a  verdict  for  the  plaintiff,  with  twenty  dollars 
damages.  The  defendant  then  moved  in  arrest  of  judgment,  for  the 
insufficiency  of  the  declaration;  and  the  court  arrested  judgment  on 
that  ground.  To  obtain  a  reversal  of  the  latter  decision,  the  plaintiff 
brought  a  writ  of  error.  He  also  moved  for  a  new  trial,  on  the 
ground  of  a  misdirection. 

HosM^R,  Ch.  J.  The  case  made  by  this  motion,  presents  two  ques- 
tions for  determination. 

The  first  is,  whether  the  plaintiff,  claiming  to  be  the  assignee  of 
the  covenant  of  seisin,  can  maintain  an  action  on  that  covenant. 

This  covenant,  from  its  nature,  is  broken  instantaneously  on  the  de- 
livery of  the  deed,  or  it  is  never  broken.  It  runs  in  the  words  of  the 
present  tense,  and  asserts,  that  the  grantor  is  well  seised.  Now,  if  he 
is  well  seised  according  to  his  covenant,  the  agreement  is  fulfilled; 
and  if  he  is  not  well  seised,  the  covenant  is  false,  and  immediately 


762  DERIVATIVE  TITLES  (Part  2 

broken.  It  follows  from  this,  that  it  is  a  personal  covenant,  which, 
most  clearly,  never  runs  with  the  land,  and  that  the  grantee,  in  whose 
time  the  breach  existed,  can  alone  sue  upon  it;  for,  after  a  breach 
the  cause  of  action  can  never  be  assigned.  It  would  be  the  assignment 
of  a  chose  in  action,  which  the  common  law  will  not  permit.  That 
the  covenant  of  seisin,  if  false,  is  broken  as  soon  as  it  is  made,  ap- 
pears from  Shep.  Touch.  170;  from  Bickford  v.  Page,  2  Mass.  460; 
from  Marston  v.  Hobbs,  2  Mass.  437,  3  Am.  Dec.  61 ;  from  Bennett 
V.  Irwin,  3  Johns.  (N.  Y.)  365;  from  Abbott  v.  Allen,  14  Johns.  (N. 
Y.)  253;  from  Greenby  et  al.  v.  Wilcocks,  2  Johns.  (N.  Y.)  1,  3  Am. 
Dec.  379;  from  Pollard  et  al.  v.  Dwight  et  al.,  4  Cranch,  430,  2 
L.  Ed.  666;  from  1  Swift's  Dig.  370;  and  from  Mitchell  v.  Hazen, 
4  Conn.  495,  10  Am.  Dec.  169.  From  its  nature,  it  does  not  run  with 
the  land,  as  none  but  real  covenants  do ;  and  these  are  always  sus- 
pended on  some  act  posterior  to  the  delivery  of  the  deed.  Hence,  as 
I  have  said  before,  having  been  broken,  the  covenant  has  become  a  chose 
in  action,  and  therefore  cannot  be  assigned.  1  Swift's  Dig.  370.  In 
Bickford  v.  Page,  2  Mass.  455,  it  was  said  by  the  court:  "This  cove- 
nant being  broken  before  the  release,  was,  at  tliat  time,  a  mere  chose 
in  action,  and  unassignable."  The  court,  in  the  case  of  Greenby  & 
al.  v.  Wilcocks,  2  Johns.  (N.  Y.)  1,  3  Am.  Dec.  379,  determined,  that 
the  assignee  of  a  covenant  of  seisin  could  not  recover.  The  opinion 
was  delivered  by  Spencer,  J.,  in  which  he  says:  "Choses  in  action  are 
incapable  of  assignment  at  the  common  law ;  and  what  distinguishes 
these  covenants,  broken  the  instant  they  were  made,  from  an  ordinary 
chose  in  action?  The  covenants,  it  is  true,  are  such  as  run  with  the 
land ;  but  here  the  substratum  fails,  for  there  was  no  land  whereof 
the  defendant  was  seised,  and  of  consequence,  none  that  he  could 
alien :  the  covenants  are,  therefore,  naked  ones,  uncoupled  with  a  right 
to  the  soil." 

The  same  point  was  adjudged  as  far  back  as  the  reign  of  Queen 
Elizabeth,  in  Lewes  v.  Ridge,  Cro.  Eliz.  863 ;  and  the  case,  so  far  as 
I  can  find,  has  never  been  overruled.  The  principle  settled  in  that 
case,  was  this ;  that  an  assignee  shall  not  have  an  action  upon  a  breach 
of  covenant  before  his  own  time.  The  same  principle  was  recognized 
in  Marston  v.  Hobbs,  2  Mass.  439,  3  Am.  Dec.  61 ;  in  the  determina- 
tion of  which  case,  it  was  said  by  Parsons,  Ch.  J.,  when  delivering  the 
opinion  of  the  court ;  that  "no  estate  passed,  to  which  these  covenants 
(i.  e.  of  seisin  and  right  to  convey)  could  be  annexed,  because  in  fact 
broken  before  any  assignment  could  be  made,  they  were  choses  in  ac- 
tion, and  not  assignable."  In  Com.  Dig.  tit.  Covenant,  B.  3,  it  is  as- 
serted, that  "covenant  does  not  lie  by  an  assignee,  for  a  breach  done 
before  his  time."  It  cannot  run  with  the  land ;  for  nothing  having 
been  conveyed,  what  land  is  there  for  it  to  run  with  ?  To  the  same  ef- 
fect is  Lucy  v.  Levington,  2  Lev.  26,  s.  c.  1  Vent.  175,  in  which  it  was 
decided,  that  for  a  breach  of  the  covenant  of  quiet  enjoyment  in  the 
testator's  time,  the  executor  was  authorized  to  recover;    and  of  his 


Ch.  6)  COVENANTS  FOR  TITLE  763 

Opinion  was  that  eminent  judge  Sir  Matthew  Hale.     Similar  doctrine 
is  to  be  found  in  the  Digest  of  Baron  Comyns,  tit.  Covenant,  B.  1. 

In  relation  to  principles  so  well  established,  one  or  two  modern 
decisions  in  Westminster-Hall  in  opposition  to  them,  however  they 
might  there  be  regarded,  ought  not  here  to  be  considered  as  of  any 
autliority.  Such  decisions  have  been  cited.  The  first  of  them  is  the 
case  of  Kingdon,  Ex'r  v.  Nottle,  1  Mau.  &  Selw.  355.  The  defendant 
had  conveyed  to  Richard  Kingdon,  the  testator,  certain  property,  and 
covenanted  that  he  was  seised  of  it,  and  had  good  right  to  convey.  It 
was  averred  as  a  breach,  tliat  he  was  not  seised  of  the  premises ;  and 
the  court  adjudged,  that  the  executor  could  not  sue  on  the  covenant, 
without  shewing  special  damage  to  the  testator,  but  tliat  the  heir 
might.  It  was  said  by  Lord  Ellenborough,  that  "the  covenant,  it  was 
true,  was  broken,  but  that  there  was  no  damage  sustained  in  the  tes- 
tator's life-time."  To  this  observation  of  that  learned  and  able  judge 
I  cannot  subscribe.  The  covenant  being  broken  the  instant  it  was 
made,  the  damage,  most  obviously,  was  the  whole  consideration  paid ; 
and  I  am  at  a  loss  to  conceive  what  other  or  furtlier  dam.age  could 
arise. 

In  the  surrounding  states,  as  well  as  in  our  own,  it  is  unquestionably 
established,  that  the  damage  is  the  consideration  paid ;  and  that  tliis 
is  Immediate  on  the  delivery  of  the  deed.  This,  then,  is  the  first  ob- 
jection to  the  determination,  that  whatever  may  be  the  law  of  West- 
minster-Hall, the  damage,  in  the  case  alluded  to,  is  justly  considered 
as  not  nominal,  but  real,  and  indeed  all  that  the  party  can  experience. 
It  is  the  whole  consideration  paid.  This  principle  alone  shews,  that 
the  determination  in  Kingdon  v.  Nottle  is  inapplicable  to  us ;  and  it 
likewise  authorizes  the  assertion,  that  Lord  Ellenborough  and  his  as- 
sociates, had  they  resided  in  Connecticut,  and  there  pronounced  their 
opinion,  would  have  decided  the  case  before  them  differently  from 
what  they  have. 

To  the  determination  in  Kingdon  v.  Nottle  there  is  a  sound  objec- 
tion. It  is  opposed  to  principles,  uniformly,  and  for  centuries,  estab- 
Hshed  in  Westminster-Hall.  It  was  said  by  Lord  Ellenborough,  in 
the  case  alluded  to,  that  "if  the  executor  could  recover  nominal  dam- 
ages, it  would  preclude  the  heir,  who  is  the  party  actually  damnified, 
from  recovering  at  all !"  The  force  of  thfs  reasoning  depends  entirely 
on  the  assertion  tlnat  the  heir  is  "the  party  actually  damnified ;"  and 
if  this  is  an  incorrect  position,  the  argument  wholly  fails.  Now,  it  is 
not  true,  that  the  heir  is  the  party  damnified.  The  damage  arises  en- 
tirely by  the  breach  of  the  covenant  in  the  life-time  of  the  testator; 
and  the  testator  is  the  only  person,  who  receives  damage.  Thus  were 
all  the  determinations  before  the  last  mentioned  decision.  To  this  ef- 
fect was  Lewis  v.  Ridge,  Lucy  v.  Levinton,  and  the  law  as  laid  down 
in  Comyn's  Digest;  and  not  a  case  or  Dictum  was  there  to  the  con- 
trary. Indeed,  the  admission  of  Lord  Ellenborough,  that  the  cove- 
nant was  broken  in  the  life-time  of  the  testator,  most  conclusively 


764  DERIVATIVE  TITLES  (Part  2 

shews,  that  the  heir  was  not  damnified.  His  own  damage  must  result 
from  his  title  to  the  land,  and  not  from  the  covenant  broken,  to  which 
he  was  no  party.  Now,  as  to  tlie  land,  the  heir  never  had  title;  nor 
had  his  ancestor.  The  complaint  is,  that  the  grantor  was  not  seised, 
and  had  conveyed  no  title.  How,  then,  is  it  possible,  tliat  the  heir 
should  inherit  land,  to  which  his  ancestor  had  no  title?  If,  then,  he 
had  no  title  to  the  estate  supposed  to  be  conveyed,  and  he  was  no  party 
to  the  covenant,  and  the  breach  happened  before  his  ancestor's  death, 
what  is  the  ground  of  his  claim  ?  In  my  opinion,  none.  On  tlie  other 
hand,  as  the  covenant  was  broken  in  the  testator's  life-time,  and  the 
damage  resulting  from  the  breach  was  due  to  him;  after  his  death, 
his  executor,  standing  in  his  place,  had  the  right  of  suit.  For  the 
principle  is  incontrovertible,  that  where  the  testator  can  maintain  cove- 
nant in  his  life-time,  on  a  cause  of  action  then  existing,  his  executor 
may  support  the  same  action  after  his  death.  1  Swift's  Dig.  371 ; 
Toll.  Ex.  158,  432. 

Another  writ  of  covenant  was  brought  by  Kingdon,  as  devisee, 
against  Nottle,  4  Mau.  &  Selw.  53,  upon  the  covenant  of  seisin  be- 
fore mentioned,  on  the  ground  tliat  the  covenant  run  with  the  land, 
and  that  the  breach  happened  to  the  devisee.  Consistently  with  the 
former  determination,  the  court  decided  in  favour  of  the  plaintiff. 
It  required  some  ingenuity  to  sustain  an  action  on  a  covenant,  for  a 
breach  happening  in  the  time  of  the  testator,  before  the  devisee  (the 
plaintiff)  could  have  any  interest  in  the  covenant ;  and  more  especially, 
as  no  special  damages  were  laid.  For  it  was  not  stated  in  the  case, 
that  the  plaintiff  was,  at  any  time,  interrupted  or  disturbed  in  the  en- 
joyment of  the  premises;  or  that  he  sustained  any  damages,  by  the 
breach  of  the  covenant,  in  the  testator's  life-time.  Accordingly,  this 
point  was  met,  by  Lord  Ellenborough,  who  said :  "The  covenant  passes 
with  the  land  to  the  devisee,  and  has  been  broken  in  the  time  of  the 
devisee;  for  so  long  as  the  defendant  has  not  a  good  title,  there  is. 
a  continuing  breach,  and  it  is  not  like  a  covenant  to  do  an  act  of  soli- 
tary performance,  but  it  is  in  the  nature  of  a  covenant  to  do  a  thing 
toties  quoties,  as  the  exigency  of  the  case  may  require." 

From  this  opinion  I  am  compielled  to  dissent  in  omnibus.  First,  I 
affirm,  that  the  novel  .idea  attending  the  breach  in  the  testator's  life- 
time, by  calling  it  "a.  continuing  breach,"  and  therefore  a  breach  to  the 
heir  or  devisee  at  a  subsequent  time,  is  an  ingenious  suggestion,  but 
of  no  substantial  import.  Every  breach  of  a  contract  is  a  continuing 
breach,  until  it  is  in  some  manner  healed ;  but  the  great  question  is,  to 
whom  does  it  continue  as  a  breach  ?  The  only  answer  is,  to  the  per- 
son, who  had  title  to  the  contract,  when  it  was  broken.  It  remains, 
as  it  was,  a  breach  to  the  same  person,  who  first  had  a  cause  of  action 
upon  it.  If  it  be  anything  more,  it  is  not  a  continuing  breach,  but  a 
new  existence.  In  the  next  place,  I  assert,  that  it  is  like  a  covenant 
to  do  an  act  of  solitary  performance ;  and  for  this  plain  reason,  that 
It  is,  in  its  nature,  a  covenant  for  a  solitary  act,  and  not  a  successive 


Ch.  6)  COVENANTS  FOR  TITLE  765 

one.  If  the  covenant  is  broken,  that  is,  if  the  grantor  was  not  seised, 
it  is  infracted  to  the  core ;  and  a  second  supposed  breach  is  as  futile 
as  the  imaginary  unbroken  existence  of  a  thing  dashed  in  pieces.  It 
has  no  analogy  to  a  covenant  to  do  a  future  act,  at  different  times, 
Avhich  may  undergo  repeated  breaches.  It  has  no  f  uturition ;  and  can- 
not be  partly  broken  and  partly  sound;  but  the  grantor  is  seised,  or 
not  seised ;  and  therefore,  the  covenant  is  inviolate,  or  violated  wholly. 
Not  further  to  pursue  the  subject,  I  remark,  that,  in  my  judgment,  the 
case  of  Kingdon  v.  Nottle  may  justly  be  said  to  authorize  the  assign- 
ment of  a  chose  in  action  by  devise ;  a  supposition  as  unfounded  as  it 
is  novel. 

1,  therefore,  conclude,  that  the  determinations  in  the  above  men- 
tioned cases  of  Kingdon  v,  Nottle,  are  against  the  ancient,  uniform 
and  established  law  of  Westminster-Hall;  against  well  settled  princi- 
ples and  decided  cases  in  the  surrounding  states;  and  that  the  judges 
pronouncing  them,  would  have  been  of  an  opinion  different  from  the 
one  expressed,  had  they  recognized  the  principle  here  well  established, 
that  the  breach  of  the  covenant  of  seisin  is,  in  its  nature,  total,  and 
the  measure  of  damages  the  whole  consideration  money  paid  for  tlie 
land.  As  a  consequence,  I  am  of  opinion  that  the  plaintiff  cannot 
sustain  his  action  on  the  covenant  of  seisin. 

2.  The  next  question  relates  to  the  covenant  of  freedom  from  incum- 
brances. 

The  deed  of  the  defendant  to  George  Welton  contains  a  covenant  of 
this  description ;  and  the  plaintiff  claims  title  to  the  covenant,  and  a 
right  to  recover  for  a  breach  of  it,  by  virtue  of  a  deed  of  quit-claim 
from  the  defendant  and  Welton.  Without  a  further  statement  of 
fact,  it  is  sufficient  to  remark,  that  the  plaintiff  has  no  right  to  re- 
cover for  the  breach  of  this  covenant;  and  if  he  had,  no  breach  of 
it  is  assigned. 

First,  he  has  no  title  to  the  covenant  of  freedom  from  incumbrances, 
nor  right  to  recover  for  the  breach  of  it.  His  only  claim  is  founded 
on  the  principle,  that  this  covenant  runs  with  the  land.  In  opposition 
to  this  claim,  I  observe,  that  the  covenant  above-mentioned  was  per- 
sonal, and  not  a  real  covenant;  that  it  was  broken  in  the  testator's 
life-time,  and  could  not  run  with  the  land, — a  peculiarity  attending  real 
covenants  only;  and  of  consequence,  that  George  Welton  is  the  only 
person  who  can  sue  on  this  unassignable  contract. 

This  covenant  is  classed,  by  the  late  Chief  Justice  Swift,  (in  the 
first  volume  of  his  Digest,  p.  370,)  with  the  covenant  of  seisin  and  of 
good  right  to  convey ;  and  in  relation  to  them  all,  he  correctly  says : 
"These  covenants  must  be  all  broken  at  the  time  of  executing  the  deed. 
or  they  never  can  be;  for  if  at  that  time,  the  grantor  is  not  well 
seised  of  the  premises,  as  an  indefeasible  estate,  or  if  he  had  no  right 
to  sell,  or  if  any  incumbrance  existed,  then  the  covenants  are  broken. 
But  if  the  grantor  is  seised,  has  right  to  sell,  or  there  are  no  incum- 
brances at  the  time  of  making  the  deed,  then  these  covenants  can  never 


766  DERIVATIVE  TITLES  (Part  2 

be  broken ;  for  no  subsequent  act  can  be  done,  by  the  grantor,  which 
will  amount  to  a  breach  of  them ;  as  he  can  do  no  act,  that  will  affect 
or  incumber  tlie  estate.  These  covenants,  of  course,  cannot  be  real 
covenants ;  for  being  broken  at  the  instant  of  their  creation,  they  are 
choses  in  action,  and  cannot  be  assigned.  The  distinguishing  feature  of 
the  real  covenant,  is,  that  it  may  be  broken  at  a  future  time ;  and  it 
is  this  quality,  which  renders  it  assignable ;  but  it  must  be  assigned  be- 
fore it  is  broken;  for  when  once  broken,  the  right  to  recover  dam- 
ages, is  a  chose  in  action,  which  cannot  be  assigned." 

With  these  observations,  I  entirely  concur.  The  fundamental  ques- 
tion, on  which  the  whole  doctrine  depends,  is,  when  is  tlie  covenant  of 
freedom  from  incumbrances  broken?  It  is  a  covenant  for  a  fact,  ex- 
isting or  said  to  exist,  not  in  future,  but  in  prsesenti;  at  the  moment 
when  the  deed  is  delivered.  The  phraseology  of  the  covenant  is,  that 
the  premises  are  free  from  incumbrances ;  not  that  they  shall  in  fu- 
ture be  free ;  just  like  the  expression  the  grantor  is  seised,  and  has 
good  right  to  convey."  If  the  covenant  be  true,  it  can  never  be  brok- 
en; if  it  be  false,  it  is  broken  immediately,  in  which  event  it  is  a  chose 
in  action,  and  cannot  be  assigned.  The  doctrine  contended  for  was 
adjudged,  by  the  supreme  judiciary  of  Massachusetts,  in  Prescott  v. 
Trueman,  4  Mass.  627,  3  Am.  Dec.  246,  and  by  the  supreme  court  of 

New  York,  in  Delavergne  v.  Norris,  7  Johns.  (N.  Y.)  358,  5  Am.  Dec. 
281.12 

Secondly,  no  breach  of  the  covenant  in  question  has,  by  the  plain- 
tiff, been  assigned.  The  averment  is  merely  this — tliat  the  estate  "is 
not  free  from  all  incumbrances."  It  is  sufficient  to  say,  that  the  law 
requires  the  incumbrance  to  be  specially  named  and  set  forth ;  or  the 
defendant  will  always  be  taken  by  surprise.  Incumbrances,  in  their 
nature,  are  numerous.  A  mortgage,  a  way,  a  right  to  dig  turf,  to 
pasture  cattle,  or  to  have  dower  assigned,  and  in  short,  an  easement 
of  any  kind,  is  an  incumbrance,  because  it  is  a  load  or  weight  on  the 
land,  and  must  lessen  its  value.  Prescott  v,  Trueman,  4  Mass.  630,  3 
Am.  Dec.  246.  It  is  opposed  to  the  fundamental  principles  of  plead- 
ing, (which  are  to  inform  the  court,  the  jury,  and,  above  all,  the  party, 
by  the  altercations  in  writing)  to  authorize  a  general  allegation  that 
there  are  incumbrances,  without  declaring  what  they  are.  The  point 
is  settled,  by  first  principles,  and  he  is  too  clear  for  controversy.  In 
Marston  v.  Hobbs,  2  Mass.  433,  3  Am.  Dec.  61,  it  was  said,  by  Chief 
Justice  Parsons,  that  the  breach  of  the  covenant  against  incumbrances, 
like  that  for  quiet  enjoyment,  must  be  specially  assigned,  shewing  its 
nature,  and  the  interruption  complained  of.    The  same  point  was  ad- 

11  See  Hall  v.  Dean,  13  Johns.  (N.  Y.^  105  (1S16);  Post  v.  Campau,  42  Mich. 
90.  3  N.  W.  272  (1879).  But  see  Guerin  v.  Smith,  62  Mieh.  3G9,  2S  N.  W.  906 
(18S6). 

12  Cf.  Dehority  v.  Wrijrht,  101  Ind.  .382  (1885);  Worley  v.  Hineman,  6  Ind. 
App.  240.  3.3  N.  E.  2G0  (INO.Jt ;  Security  Bank  of  Minnesota  v.  Holmes,  65  Minn. 
531,  68  N.  VV.  113,  60  Am.  St.  Rep.  495  (1S!)6). 

.See  Richard  v.  Bent,  59  111.  38,  14  Am.  Rep.  1  (1871),  contra. 


Ch.  6)  COVENANTS  FOR  TITLE  767 

judged,  by  the  same  court,  Bickford  v.  Page,  2  Mass.  455 ;  and  in  De 
Forest  v.  Leete,  16  Johns.  (N.  Y.)  122,  it  was  said,  by  the  supreme  court 
of  New  York,  that  under  a  general  assignment  of  a  breach  of  the  cove- 
nant against  incumbrances,  the  plaintiff  cannot  give  evidence  of  his 
having  bought  in  an  incumbrance,  because  it  was  not  specifically  al- 
leged in  the  declaration;  and  for  the  admission  of  such  evidence,  a  new 
trial  was  granted. 

The  charge  of  the  judge  to  the  jury,  in  this  case,  is  free  from  ex- 
ception. The  covenant  in  question,  as  was  said  by  him,  is  broken  in- 
stantaneously, if  ever ;  and  under  the  negative  averment  is  not  free 
from  incumbrances,  the  jury  were  correctly  instructed,  that  proof  of 
a  particular  incumbrance  was  inadmissible,  because  it  should  have  been 
set  forth  specifically,  to  apprize  the  defendant  of  its  nature,  and  give 
him  the  means  of  preparation  for  his  defence. 

Peters,  Brainard  and  Bristol,  JJ.,  were  of  the  same  opinion. 

New  trial  not  to  be  granted.^* 


SCHOFIELD  V.  IOWA  HOMESTEAD  CO. 

(Supreme  Court  of  Iowa,  1S71.     32  Iowa,  317,  7  Am.  Kep.  197.) 
Action  upon  the  covenants  of  a  deed  for  lands.    Trial  to  the  court 
without  a  jury,  and  judgment  for  plaintiff.     Defendant  appeals. 

Beck,  J.  I.  The  counsel  of  the  respective  parties  agree  that  the 
action  is  based  upon  the  covenant  of  seisin,  which  is  sufficiently 
expressed  in  the  deed.  As  a  defense,  the  answer  alleges  that,  prior  to 
the  commencement  of  the  action,  plaintiff,  for  value,  sold  and  con- 
veyed a  part  of  the  lands  to  another,  and  that  the  covenant  declared 
on  passed  with  the  land,  so  far  as  the  contract  covered  the  same,  to 
the  purchaser  from  plaintiff,  and  that  recovery  in  this  action  for  the 
land  so  conveyed  is  barred.  To  this  defense  a  demurrer  was  sus- 
tained. The  question  thus  presented  for  our  determination  is  this: 
Does  the  covenant  of  seizin  run  with  the  land? 

We  are  fully  aware  of  the  discord  of  authorities  upon  this  ques- 
tion, and  that  a  great  majority  of  the  American  cases  hold  the  cove- 
nant to  be  in  prsesenti,  and  that  it  is  broken,  if  at  all,  when  the  deed 
is  delivered,  and  that  the  claim  for  damages  thereby  becomes  personal 
in  its  nature  to  the  grantee,  and  is  not  transferred  by  a  conveyance 
to  a  subsequent  grantee.  But  in  England  the  rule  prevails  that  the 
covenant  runs  with  the  land,  and  recovery  for  a  breach  thereof  may 
be  had  by  the  assignee  of  the  grantee  in  the  deed.  Kingdon  v.  Not- 
tle,  1  Maule  &  Selw.  355 ;  4  Maule  &  Selw.  53 ;  King  v.  Jones, 
5  Taunt.  418;  4  Maule  &  Selw.  186;  1  Smith's  Lead.  Cases,  Am. 
notes  to  Spencer's  Case,  p.  150;  4  Kent's  Com.  472;  1  Washburn  on 
Real  Prop.  649. 

13  See  Collier  v.  Gamble,  10  Mo.  467  (1847) ;  Cole  v.  Kimball,  .52  Vt.  6.S9 
(18S0) ;  Peters  v.  Bowman,  98  U.  S.  56,  59,  25  L.  Ed,  91  (1878) ;  Clark  v.  Swift, 
3  Mete.  (Mass.)  390  (1841). 


768  DERIVATIVE  TITLES  (Part  2 

The  English  doctrine  has  been  adopted,  and  the  rule  in  Kingdon 
V.  Nottle,  followed  by  the  supreme  courts  of  Ohio  and  Indiana/* 
with  the  modification,  however,  in  Ohio,  that  when  the  grantor  has 
neither  title  nor  possession,  and  is  therefore  unable  to  transfer  either 
by  his  deed,  the  covenant  is  broken  as  soon  as  made,  and  becomes 
a  mere  right  of  action  which  is  not  transferred  by  a  subsequent 
conveyance  of  the  land.  Backus'  Adm'rs  v.  McCoy,  3  Ohio,  211,  17 
Am.  Dec.  585 ;  Foote  v.  Burnet,  10  Ohio,  317,  36  Am.  Dec.  90;  Devore 
V.  Sunderland,  17  Ohio,  52,  49  Am.  Dec.  442;  Alartin  v.  Baker,  5 
Blackf.  (Ind.)  232. 

A  similar  rule,  applicable  to  covenants  against  incumbrances,  for- 
merly prevailed  in  Massachusetts,  but  has  been  abandoned.  Wyman 
V.  Ballard,  12  Mass.  30+;     Sprague  v.  Baker,  17  Mass.  586. 

A  like  doctrine  is  recognized  in  South  Carolina.  Brisbane  v.  Mc- 
Crady's  Ex'rs,  1  Nott  &  McCord,  104,  9  Am.  Dec.  676. 

The  English  rule  is  commended  to  us  by  reason  and  justice,  and 
Chancellor  Kent,  while  condemning  the  reasons  upon  which  it  is 
supported  in  Kingdon  v.  Nottle,  admits  that  the  American  doctrine 
is  supported  upon  a  "technical  scruple,"  and  assigns  the  most  con- 
clusive reasons  in  support  of  the  opposite  English  rule,  4  Kent,  472. 

The  object  of  all  covenants  in  conveyances  of  lands,  relating  to 
their  title  or  their  enjoyment,  is  to  secure  indemnity  to  the  party 
entitled  to  the  premises  in  case  he  is  deprived  of  them.  The  sub- 
sequent vendee,  in  the  language  of  Kent,  "is  the  most  interested  and 
the  most  fit  person  to  claim  the  indemnity  secured  by  them  (the  cove- 
nants), for  the  compensation  belongs  to  him  as  the  last  purchaser  and 
first  sufferer." 

The  American  rule  will  operate  oppressively  in  all  cases  where 
the  land  has  been  subsequently  conveyed  by  the  grantee,  either  to- 
ward the  grantor  or  subsequent  purchaser.  If  the  purchaser  is 
evicted  he  ought  to  receive  the  indemnity  secured  by  the  covenant, 
for  he  is  not  only,  as  is  said  by  Kent,  the  first  sufiferer,  but  the  only 
sufferer  in  every  instance,  except  when  he  has  not  paid  for  the  land. 
When  the  grantee,  under  the  deed  containing  the  covenant,  has  sold 
and  received  pay  for  the  land,  it  would  be  gross  injustice  to  permit 
him  to  recover,  for  he  would  not  in  that  case  sustain  damages.  But 
under  the  rule,  to  which  we  are  now  objecting,  the  grantee  may 
recover  on  the  covenant  of  seizin  and,  if  there  be  a  covenant  of 
warranty  in  the  deed,  the  subsequent  grantee  may  also  recover  up- 
on that  contract  against  the  first  grantor.  But  if  there  be  no  cov- 
enant of  warranty,  we  would  have  the  equally  strange  case  of  a  party, 
the  first  grantee,  recovering  damages  when  he  is  entitled  to  none,  and 
the  party  really  injured  unable  to  recover.  Other  instances  of  un- 
just and  unreasonable  results  could  be  mentioned. 

The  "technical  scruple,"  as  it  is  called  by  Kent,  upon  which  the 

14  See,  also,  Mecklem  v.  Blalie,  22  Wis.  405,  99  Am.  Dee.  68  (186S),  ace 


Ch.  6)  COVENANTS   FOR  TITLE  769 

American  doctrine  is  based,  is  this :  The  covenant  is  broken  the  in- 
stant the  conveyance  is  delivered ;  it  then  becomes  a  chose  in  action 
held  by  the  grantor  in  the  deed.  Brady  v.  Spurck,  27  111.  478 ;  King  v. 
Adm'x  of  Gilson,  32  111.  348,  83  Am.  Dec.  269.  But  how  can  this  be 
a  reason  in  support  of  the  doctrine  under  the  laws  of  this  State  which 
permit  the  assignment  of  all  choses  in  action?  What  legal  principle 
would  be  violated  by  holding  that  the  deed  from  the  first  grantee  op- 
erates as  an  assignment  of  this  chose  in  action  ? 

Deeds  under  the  laws  of  this  State  have  been  reduced  to  forms  of 
great  simplicity.  Intricate  technicalities  have  been  pruned  away,  and 
they  are  now  as  brief  and  simple  in  form  as  a  promissory  note.  All 
choses  in  action,  as  I  have  just  remarked,  may  be  assigned  and  trans- 
ferred. The  covenant  of  seizin  (if  it  be  held  that  such  a  covenant 
exists  in  a  deed  of  the  form  authorized  by  the  laws  of  this  State), 
as  we  have  seen,  is  intended  to  secure  indemnity  for  the  deprivation  of 
the  title  and  enjoyment  of  the  lands  conveyed.  Why  not  brush  away 
the  "technical  scruples"  gathered  about  the  covenant  of  seizin,  as  we 
have  the  like  technical  and  cumbrous  forms  of  the  instrument  itself, 
and  enforce  it  for  the  benefit  of  the  party  who  is  really  injured  by  its 
breach,  even  though,  in  so  doing,  we  find  it  necessary  to  hold  that  a 
chose  in  action  is  assigned  and  transferred  by  the  operation  of  the 
deed'' 

To  my  mind,  the  position  reached  by  this  course  of  argument  is  im- 
pregnable, and  I  cannot  be  driven  from  it  by  the  great  weight  of 
authorities  in  support  of  the  contrary  doctrine. 

We  conclude  that  plaintiff  was  not  entitled  to  recover  for  the  land 
conveyed  by  him,  and  that  the  court  erred  in  rendering  judgment  for 
the  full  amount  of  the  consideration  paid,  as  shown  by  the  deed. 

II.  The  plaintiff's  counsel  argues  that,  admitting  the  covenant  runs 
with  the  land,  being  entire,  a  conveyance  of  a  portion  of  the  premises 
vests  no  right  of  action  in  the  grantee.  But  this  position  is  in  con- 
flict with  the  authorities.  It  is  held  that  covenants  running  with  the 
land  are  susceptible  of  division,  so  that  if  the  land  be  conveyed  in 
parcels  to  several  persons,  each  may  maintain  an  action  upon  the 
covenant  to  recover  for  the  land  in  which  he  has  an  interest.  Kane 
V.  Sanger,  14  Johns.  (N.  Y.)  89;  Dickinson  v.  Hoomes'  Adm'r,  8  Grat. 
(Va.)  353. 

This  rule  is  based  upon  sound  reason,  and  accords  with  the  analogies 
of  the  law.^"^     *     *     * 

On  account  of  the  error  in  holding  that  the  covenant  sued  upon 
does  not  run  with  the  land,  the  judgment  of  the  circuit  court  is  re- 
versed.^* 

16  A  portion  of  ttie  opinion  relating  to  the  burden  of  proof  is  omitted. 

16  See  Hall  v.  Plaine,  14  Ohio  St.  417  aSG3) ;  Geiszler  v.  De  Graaf,  160  N. 
T.  339,  59  N.  E.  993,  82  Am.  St.  Rep.  059  (1901) :  In  re  Hanlin,  133  Wis.  140,  113 
N.  W.  411,  17  L.  R.  A.  (N.  S.)  1189,  12G  Am.  St.  Rep.  938  (1907) ;  Brooks  v.  Mohl, 
Aig.Pbop. — 49 


,770  .  DERIVATIVE  TITLES  (Part  2 

MARKLAND  v.  CRUMP. 

(Supreme  Court  of  North  Carolina,  1S34.     IS  N.  C.  94,  27  Am.  Dec.  230.) 

This  was  an  action  to  recover  damages  for  the  breach  of  a  cove- 
nant of  quiet  enjoyment  contained  in  a  deed  whereby  the  defendant 
conveyed  land  to  the  intestate  of  the  plaintiff.  The  breaches  assigned, 
were:  1st.  The  eviction  of  the  intestate  by  paramount  title.  2nd. 
The  eviction  of  the  bargainee  of  the  intestate. 

The  plaintiff  having  made  out  a  prima  facie  case,  for  the  defence 
it  was  proved  that  the  interest  of  the  intestate  in  the  land,  had,  before 
the  eviction,  been  sold  under  a  fi.  fa.  against  the  intestate,  to  one  Alar- 
cum,  and  that  the  latter  was  the  person  who  had  really  been  evicted. 

Upon  this  fact  being  admitted,  his  honour.  Judge  Sewell,  at  Rowan, 
on  the  last  Circuit,  ruled  that  the  plaintiff,  to  entitle  himself  to  a 
verdict,  should  "show  a  disturbance,  either  of  his  intestate,  or  of  some 
person  holding  under  him,  as  his  tenant,  whose  possession  was  that 
of  the  intestate.  That  the  plaintiff  as  administrator,  could  not  recover 
for  a  disturbance,  when  the  person  disturbed  could  claim  the  benefit 
of  the  covenant,  in  the  deed  to  the  intestate.  That  the  covenant  de- 
clared on,  either  ran  with  the  land  to  the  assignee,' or  it  did  not.  If 
the  former,  the  assignee  being  the  person  disturbed,  was  entitled  to 
its  benefit — that  but  one  action  could  be  maintained  for  the  disturb- 
ance, and  to  allow  that  action  to  be  brought  by  one  whase  interest  had 
passed  away,  and  who  had  received  the  full  value  of  the  land,  for  a 
disturbance  which  in  no  way  molested  him,  and  this  to  the  prejudice 
of  the  person  really  injured,  who  had  lost  both  the  lands  and  his  mon- 
ey, was  not  consistent  either  with  reason  or  justice.  That  if  on  the 
other  hand,  the  covenant  did  not  run  with  the  land,  and  extend  to 
the  assignee — the  purchaser  under  the  fi.  fa.  then  it  had  not  been 
broken  by  the  eviction  of  the  latter." 

In  submission  to  this  opinion,  the  plaintiff'  suffered  a  non-suit,  and 
appealed. 

RuFFiN,  C.  J.  The  opinion  delivered  in  the  Superior  Court,  is  that 
entertained  by  this  Court ;  and  very  much  upon  the  reasons  expressed 
by  his  honour.  For  it  would  seem  to  be  a  first  principle,  that  in  an 
action  sounding  in  damages,  none  can  be  recovered,  if  none  have  been 
sustained  by  the  plaintiff. 

jSIarcum,  the  purchaser  at  sheriff's  sale,  has  been  regarded  by  the 
plaintiff's  counsel,  as  a  purchaser  with  warranty;  because,  under  the 
statute,  he  can  have  recourse  to  Tucker,  the  defendant  in  the  execution. 
The  Court  supposes  it  clear,  that  he  is  an  assignee,  who,  by  reason  of 

104  Minn.  404,  116  N.  W.  931,  17  L.  R.  A.  (N.  S.)  1195,  124  Am.  St.  Rep.  G29 
(1908). 

Hut  see  Zent  v.  Picken,  54  Iowa.  535,  6  N.  W.  750  (ISSO) ;  Backus'  Adiu'rs  v. 
McCoy,  3  Ohio,  211,  17  Am.  Dec.  585  (1827). 


Ch.  o)  COVENANTS   FOR  TITLE  771 

the  privity  of  estate,  is  entitled  to  the  benefit  of,  and  bound  by  all 
covenants  running  with  the  land.  Spencer's  Case,  6th  Resolution,  5 
Rep.  17.  But  whether  such  recourse  against  Tucker,  would  amount  to 
such  a  warranty,  or  ought  to  be  construed  to  have  the  same  effect, 
the  Court  does  not  deem  it  necessary  to  determine.  Because  we  think, 
an  express  warranty  from  Tucker  to  Marcum,  would  not,  upon  the 
eviction  of  the  latter,  give  an  action  to  Tucker  against  Crump,  on  his 
covenant  of  warranty,  nor  be  a  bar  to  that  of  Marcum  against  Crump 
on  the  same  covenant. 

In  support  of  the  proposition  to  the  contrary,  the  counsel  for  the 
plaintiff  has  been  able  to  adduce  no  case,  in  which  that  was  the  point 
adjudged.  In  Kane  v.  Sanger,  14  Johns.  (N.  Y.)  89,  Chief  Justice 
Spencer  states  the  general  rule  to  be,  that  where  covenants  run  with 
the  land,  if  it  be  conveyed  before  a  breach  of  the  covenant,  the  assignee 
only  can  sue  upon  the  subsequent  breach ;  but  if  the  assignor  be  him- 
self bound  in  his  deed,  to  indemnify  the  assignee  against  such  breach, 
there  the  assignor  onl]^  can  bring  the  action.  This  is  certainly  a  very 
explicit  declaration  of  the  opinion  of  a  most  respectable  Judge.  But 
it  is  not  entitled  to  the  authority  of  an  adjudication;  because  it  was 
not  necessary  to  the  decision  of  the  case,  and  is  only  a  dictum.  There 
the  plaintiff,  who  was  the  assignor,  had  immediately  taken  back  the  le- 
gal estate,  by  way  of  mortgage  in  fee;  and  therefore  his  assignee 
could  not,  under  any  circumstances,  have  had  an  action ;  for  at  the 
time  of  the  breach,  he  was  not  the  assignee,  but  the  plaintiff  was  rein- 
vested with  the  estate  by  force  of  the  mortgage.  Upon  this  ground 
the  plaintiff'  had  judgment.  As  it  was  held,  that  in  the  case  proved,  the 
effect  of  the  plaintiff"'s  warranty  could  not  be  a  bar  to  the  action,  it 
became  immaterial  to  determine  what  the  effect  would  have  been, 
if  the  estate  had  remained  in  the  assignee,  until  his  eviction. 

No  English  case  is  referred  to  by  the  Chief  Justice,  and  but  one  in 
this  country,  that  of  Bickford  v.  Paige,  2  Alass.  460.  This  last  case 
does  not  seem  to  us  to  admit  of  such  an  interpretation.  Chief  Jus- 
tice Parsons  says,  that  "the  assignee  alone  can  sue,  unless  the  nature 
of  the  assignment  be  such,  that  the  assignor  is  holden  to  indemnify  the 
assignee  against  a  breach  of  the  covenants  by  the  original  vendor; 
which  is  founded  on  the  principle,  that  no  man  can  maintain  an  action 
to  recover  damages,  who  has  suffered  none."  This  is  a  very  clear 
opinion,  that  an  assignee  without  a  covenant  from  his  immediate 
vendor,  may  sue  on  a  remote  covenant;  and  that  he  alone  can  sue  in 
such  a  case ;  and  that  for  the  very  best  of  reasons — because  no  body 
else  is  injured.  But  it  affords  no  inference,  that  an  assignee  with 
warranty  may  not  also  sue  on  a  remote  covenant,  but  only,  that  in 
such  case,  he  is  not  the  only  person,  who  can  have  remedy  for  a 
breach.  In  the  context,  it  must  mean,  that  the  assignee  who  is  evicted, 
may  sue  the  remote  covenantor  for  the  damages  sustained  by  him ;  but 
that  this  case  is  not  like  the  former  in  which  he  alone  could  have  the 
action;    because  in  this  case,  another,  besides  the  assignee,  may  sus- 


772  DERIVATIVE  TITLES  .    (Part  2 

tain  damages,  namely,  his  assignor  upon  his  engagement  to  indemnify. 
As  without  such  engagement  the  assignor  could  not  sue,  because  he 
could  not  be  injured;  so  where  he  paid  the  damages  to  the  assignee 
upon  such  an  engagement,  the  assignor  could  sue,  because  he  then  had 
suffered.  But  because  the  assignor  can  bring  an  action  after  suffer- 
ing, it  does  not  follow  that  he  can  bring  his  action  upon  the  eviction 
of  his  assignee,  and  before  satisfying  the  assignee,  and  to  the  exclu- 
sion of  the  assignee  himself. 

This  construction  of  the  language  of  Chief  Justice  Parsons  is  that 
adopted  by  the  Court  in  Withy  v.  Mumford,  5  Cow.  (N.  Y.)  137,  in 
which  the  doctrine  laid  down  in  Kane  v.  Sanger,  is  pointedly  denied, 
under  such  circumstances  as  to  destroy  its  authority;  even  in  the 
Courts  of  New  York.  For  had  the  point  been  necessary  to  a  decision 
in  Kane  v.  Sanger,  it  is  adjudged  directly  to  the  contrary  in  Withy  v. 
Mumford,  in  which  it  was  held,  that  the  assignee,  who  is  evicted, 
may  sue  any  one  or  more  of  the  covenantors,  whether  immediate  or 
remote;  and  that  an  assignor,  who  has  himself  covenanted,  cannot 
sue  a  prior  covenantor,  until  he  has  himself  satisfied  the  evicted  as- 
signee;  but  that  upon  doing  that,  he  can. 

This  Court  is  at  loss  for  a  reason  upon  which  the  first  rule  laid 
down  in  the  Supreme  Court  of  New  York  can  be  sustained,  or  the 
second  can  be  impeached.  If  there  be  a  reason,  it  must  be  peculiar 
to  covenants  and  conveyances  of  land.  None  such  is  perceived;  and 
to  JUS,  the  position  contended  for  seems  to  be  inconvenient,  unjust, 
and  contrary  to  analogy.  It  multiplies  suits,  by  requiring  each  as- 
signee to  sue  his  own  vendor  only.  It  may  defeat  the  evicted  person 
of  his  damages,  by  enabling  his  insolvent  assignor  to  recover  the 
money  from  the  only  person  among  those  liable,  who  is  able  to  pay  it ; 
and  he  may  refuse  to  pay  it  over.  Covenants  which  run  with  land, 
were  always  exceptions  to  the  maxim  of  the  common  law,  that  choses 
in  aqtion  could  not  be  assigned.  They  cannot  be  separated  from  the 
land,  and  transferred ;  but  with  the  land  they  could,  as  being  annexed 
to  the  estate  in  possession,  and  bound  the  parties  in  respect  to  the 
privity  of  estate.  In  other  instances  of  assignments  tolerated  by  law, 
the  assignee  having  for  the  time  being  the  right,  is  alone  entitled  to 
an  action  on  the  contract^  and  may  have  his  action  against  any  of  the 
parties  bound,  either  mediately  or  immediately.  Negotiable  mercan- 
tile instruments,  afford  a  similar  example.  The  holder  may  sue,  not 
only  his  own  endorser,  but  also  any  one  whose  name  is  on  the  paper. 
But  an  endorser  cannot  have  an  action  against  any  party  prior  to  him- 
self, until  he  shall  have  taken  up  the  paper  from  the  last  holder,  and 
thus  become  the  holder  to  his  own  use.  The  good  sense  of  this  prin- 
ciple seems  to  make  it  necessarily  applicable  to  all  cases  of  successive 
engagements  of  indemnity. 

It  is  admitted  that,  if  the  grantee  with  warranty,  convey  without 
warranty,  the  last  grantee  may  sue  directly  on  the  covenant  of  the  first 
grantor.    It  is  not  seen   why  the  interposing  a  second  warranty  should. 


Ch.  G)  COVENANTS   FOR   TITLE  773 

nor  how  it  can,  restrict  the  assignee  to  a  remedy  on  the  last  covenant. 
In  each  case,  the  first  covenant  came  to  him,  as  being  annexed  to  the 
estate ;  and  thus  belonging  to  him,  he,  and  not  another,  ought  to  have 
the  action  on  it,  until  he  gets  satisfaction.  When  that  is  made,  the 
person  who  makes  it  is  then  the  injured  person,  and  may  have  his  ac- 
tion to  make  himself  whole.  It  is  for  the  benefit  of  all  parties,  that 
each  claimant  should  have  a  direct  recourse  on  the  person  ultimately 
responsible,  if  he  be  able  to  respond. 

An  argument  was  drawn  for  the  plaintiff,  from  the  doctrine  of 
Buckhurst's  Case,  1  Co.  Rep.  1,  that  a  vendor  who  warrants,  is  entitled 
to  keep  the  title  papers,  which  contain  covenants  to  which  he  may  re- 
sort for  his  indemnity.  The  inference  sought  is,  that  if  he  has  a 
right  to  the  deed,  it  must  be  because  he  alone  can  bring  an  action  on 
the  covenants  in  them,  or  that  such  possession  gives  him  the  exclusive 
right  of  action.  In  our  opinion,  that  consequence  cannot  be  deduced. 
It  affords  no  better  ground  for  his  action  for  a  breach  subsequent 
to  his  assignment,  than  for  such  action  before  any  breach,  in  antici- 
pation of  one.  The  possession  of  the  title  deeds  may  indeed  put  the 
assignee  to  a  difficulty  in  framing  his  declaration,  making  profert, 
and  giving  evidence  of  a  deed  not  in  his  own  possession,  which  he 
must  encounter,  and  get  over  as  well  as  he  can.  Indeed,  it  may  be, 
that  he  may  be  excused  from  a  profert,  if  the  record  shows  that  he  is 
not  entitled  to  the  deeds.  But  these  obstacles  merely  arise  out  of 
the  rules  of  pleading  and  evidence,  as  between  the  assignee  and  cov- 
enantor sued;  and  have  no  reference  to  the  rights  of  an  interme- 
diate owner,  who  has  parted  from  his  title.  The  first  feoffor  can 
make  direct  satisfaction  to  the  person  evicted,  or  take  a  release 
from  him. 

That  an  assignee  may  sue  the  remote  covenantor,  the  case  of  Mid- 
dlemore  v.  Goodall,  Cro.  Car.  503,  is  a  direct  authority.  It  is  true 
that  the  plaintiff  there  did  not  state  in  his  declaration,  that  his  con- 
veyance was  with  warranty;  so  that  the  effect  of  such  a  covenant  is 
not  precisely  shown  by  that  case.  But  it  is  equally  true,  that  it  does 
not  appear  that  the  deed  to  the  plaintiff  did  not  contain  such  a  cov- 
enant. Now  every  declaration  must  give  a  complete  cause  of  action, 
and  if  the  law  be,  that  an  assignee  with  warranty  cannot  sue  on  any 
prior  covenant,  the  declaration  ought  to  aver  that  the  plaintiff  is  an 
assignee  without  one.  Nothing  of  that  kind  is  found  in  that  case,  nor 
in  the  precedents.  They  are  silent  as  to  the  covenants  contained  in 
all  the  deeds,  under  which  the  plaintiff  claims,  except  the  particular 
covenants  on  which  the  suit  is  brought,  and  only  sets  forth  the  op- 
erative parts  of  the  deed,  as  conveying  the  estate  to  the  plaintiff. 
Nor  has  any  case,  or  precedent  been  found,  of  a  plea,  that  the  con- 
veyance from  the  plaintiff's  vendor,  or  from  some  assignor  between 
himself  and  the  defendant,  did  contain  covenants,  although  the  case 
of  such  covenants,  posterior  to  that  of  the  defendant  in  the  action, 
must  frequently  have  occurred. 


774  DERIVATIVE  TITLES  (Part  2 

But  a  still  broader  ground  was  asserted  in  the  argument;  which 
is,  that  even  if  the  assignee  Marcum  could  sue,  yet  the  plaintiff,  as 
administrator  of  Tucker,  the  defendant's  bargainee,  could- also  have 
his  action :  the  two  actions  resting  on  different  grounds ;  the  former 
on  privity  of  estate,  and  the  latter  on  privity  of  contract. 

For  this  no  direct  authority  has  been  cited,  and  we  suppose  there 
can  be  none.  For  it  is  a  proposition  of  simple  justice  to  the  covenantor, 
that  both  actions  cannot  be  maintained.  It  has  however  been  likened 
to  the  case  of  the  action  of  covenant  by  a  lessor  against  an  as- 
signee of  the  lessee,  and  also  against  the  lessee  himself;  both  of 
which  will  certainly  lie.  That,  however,  is  but  the  ordinary  case  of 
a  creditor  having  a  right  to  look  to  two  persons  severally  for  the  same 
debt,  from  one  only  of  whom,  is  he  allowed  to  collect  it.  This  would 
be  the  anomalous  one,  of  two  persons  having  each  the  distinct  right  to 
recover  and  collect  from  a  debtor,  the  same  money,  although  he  ought 
to  pay  it  but  once. 

The  present  case  is  really  correlative,  not  to  that  of  a  lessor  claim- 
ing from  the  lessee  and  his  assignee  the  rent  due  him,  but  to  that 
of  a  lessor  who  has  assigned  his  reversion  and  sues  the  lessee  on  the 
covenants  in  the  lease  for  rent  arising  after  the  assignment.  That 
such  an  action  cannot  be  sustained  upon  the  privity  of  contract  has 
been  settled  ever  since  Lord  Coke's  time.  Walker's  Case,  3  Rep.  22. 
It  is  there  laid  down  "that  if  the  lessor  grants  over  his  reversion,  now 
the  contract  runneth  with  the  estate,  and  therefore  the  grantor  shall 
not  have  any  action  of  debt  for  rent  due  after  his  assignment,  but 
the  grantee  shall  have  it;  for  the  privity  of  contract  follows  the  es- 
tate, and  is  not  annexed  to  the  person  but  in  respect  of  the  estate." 
The  explanation  of  the  difference  he  proceeds  afterwards  to  give,  and 
it  is  most  reasonable.  "The  lessee  himself,"  he  says,  "shall  not  pre- 
vent by  his  own  act  such  remedy  which  the  lessor  hath  against  him ; 
but  when  the  lessor  grants  over  the  reversion,  there,  against  his  own 
grant  he  cannot  have  remedy,  because  he  has  granted  to  another 
the  reversion,  to  which  the  rent  is  incident."  It  is  thus  seen,  that 
to  an  action  by  the  lessor  against  the  lessee  or  his  assignee,  it  is 
a  full  answer,  that  the  plaintiff  had  assigned  before  the  rent  ac- 
crued. 

The  same  principle  embraces  the  present  case.  Tucker,  the  de- 
fendant's grantee,  cannot  have  the  action,  because  he  conveyed  to 
Marcum,  before  the  breach,  the  estate  to  which  the  covenant  was 
incident,  and  the  original  privity  of  contract  will  not  siipport  the  ac- 
tion, but  in  respect  of  the  privity  of  estate  continuing,  or  of  the  loss 
of  the  estate  and  damages  thence  arising  to  the  plaintiff. 

Indeed,  if  privity  of  contract  alone  was  sufficient  without  reference 
to  the  estate,  the  present  plaintiff  might  recover  as  well  if  his  intes- 
tate had  conveyed  without,  as  with  warranty;  for  the  covenants 
inserted  hi  the  deed  do  not  make  it  more  or  less  an  assignment  of  the 
land.    Yet  the  very  cases  cited  admit  the  assignee's  sole  right  to  sue, 


Ch.  G)  COVENANTS   FOB  TITLE  775 

if  there  had  not  been  a  warranty  by  his  vendor;  for  if  he  had  not  the 
right  there  would  be  no  redress. 

But  there  are  other  cases  from  which  it  is  clear  that  mere  privity  of 
contract  will  not  suffice  to  sustain  an  action;  but  the  plaintiff  must 
show  a  damage  arising  to  himself  in  particular,  from  the  breach  al- 
leged. Those  of  Kingdon  v.  Nottle,  1  Maule  &  Selw.  355,  and  4 
Maule  &  Selw.  53,  are  clear  examples.  The  defendant  conveyed  to 
the  testator  with  a  covenant  of  seisin ;  and  the  first  action  was  brought 
by  the  plaintiff  as  executrix,  upon  the  idea  that  such  a  covenant  was 
broken  as  soon  as  entered  into,  and  therefore  that,  as  in  other  cases 
of  a  breach  in  the  testator's  time,  she  ought  to  sue  in  that  character. 
But  it  was  held  otherwise  on  demurrer,  because  although  the  war- 
ranty was  broken  in  the  testator's  time,  yet  the  declaration  did  not 
show  a  special  damage  to  him  in  his  life-time,  and  the  heir  or  dev- 
isee took  the  estate  such  as  it  was,  and  was  entitled  to  the  benefit  of 
the  covenant;  and  therefore  the  executrix  could  not  sue,  and  claim 
the  damages  as  personalty,  since  the  testator  had  not  so  treated  the 
breach  of  covenant.  Lord  Ellenborough  said  there  would  be  a  diffi- 
culty in  admitting  the  executrix  to  recover  at  all,  that  is,  upon  the  dec- 
laration aa  framed,  without  allowing  her  to  recover  the  full  amount 
of  damages  for  the  defect  of  title;  and  in  that  case,  the  heir  would 
be  barred  by  her  recovery ;  for  the  heir  could  not  maintain  another  ac- 
tion for  the  same  breach  and  the  same  damages.  All  the  Judges, 
indeed,  put  it  pointedly,  that  the  recovery  by  the  executrix  would  be 
a  bar  to  the  heir,  and  leave  no  subject  of  a  suit  for  the  devisee,  al- 
though the  estate  such  as  it  was,  came  to  him,  and  the  damage  was 
actually  to  him.  Accordingly  when  the  same  plaintiff,  in  the  last  case, 
sued  as  devisee,  there  was  judgment  for  her. 

These  cases  are  contrary  to  several  in  this  country  in  one  respect; 
which  is,  tliat  upon  a  covenant  of  seisin  the  assignee  of  the  land  can- 
not have  an  action,  since  the  breach  is  necessarily  before  the  assign- 
ment. Greenby  v,  Wilcocks,  2  Johns.  (N.  Y.)  4,  3  Am.  Dec.  379,  and 
Bickford  v.  Paige,  2  ]\Iass.  460.  That  difference  does  not  aft'ect  the 
question  before  us ;  and  tlie  case  of  Kingdon  v.  Nottle  is  a  clear 
authority  for  this  principle,  that  whenever  a  person  is  in  the  land  in 
privity  of  estate  with  the  covenantor,  eviction  or  defect  of  title  is  not 
necessarily  to  the  damage  of  one  who  has  merely  a  privity  of  con- 
tract; but  that  such  latter  person  must  particularly  show  his  dam- 
age, before  he  can  sue  on  the  contract.  It  further  establishes,  that 
the  action  of  the  person  who  has  only  a  privity  of  contract  will  not 
lie,  because  a  recovery  in  it  would  be  a  bar  to  the  person  who  had 
the  privity  of  estate,  to  whom  the  injury  is  immediate,  and  who  there- 
fore has  the  first  right  to  satisfaction. 

Upon  the  whole,  therefore,  the  Court  is  of  opinion,  both  upon  au- 
thority and  reason,  that  a  purchaser  with  warranty  from  his  vendor 
may  sue  upon  a  covenant  of  warranty  to  his  vendor;    and  as  a  con- 


776  DERIVATIVE  TITLES  (Part  2 

sequence,  that  the  latter  cannot  sue,  until  he  shall  have  sustained 
damage  by  making  satisfaction  upon  his  own  covenant. 

This  is  the  more  proper  here,  since  the  rule  established  in  this  state 
for  measuring  the  damages ;  because  the  plaintiff's  intestate  ought  not 
to  recover  his  purchase  money,  but  only  what  Marcum  recovered  from 
him ;  that  is  to  say,  the  purchase  money  and  interest  paid  by  Marcum. 
Williams  v.  Beeman,  13  N.  C.  483. 

The  observations  on  the  first  point  supersede  the  necessity  of  exam- 
ining the  question,  whether  an  estate  passed  by  the  defendant's  deed  or 
not.  The  declaration  is  not  framed  on  a  covenant  to  convey,  as  if  this 
were  such  an  agreement  and  not  a  conveyance ;  but  on  this  as  a  cove- 
nant of  warranty  of  an  estate  conveyed.  The  gravamen  is  the  evic- 
tion of  Marcum,  the  assignee,  and  the  damages  arising  therefrom; 
and  not  a  refusal  to  make  an  assurance.  Now  the  eviction  of  the  in- 
testate's assignee  can  never,  per  se,  be  an  injury  to  the  plaintiff;  but 
to  the  assignee  alone,  until  he  shall  have  called  on  the  plaintiff  to 
make  him  whole.  When  that  shall  be  done,  the  plaintiff  can  state 
a  case  in  his  declaration,  on  which  a  special  damage  to  his  intestate, 
or  to  himself  as  administrator,  can  be  seen  and  assessed  to  him. 

Per  Curiam.    Judgment  affirmed.^ ^ 


WILSON  v.  TAYLOR'S  EX'RS. 
(Supreme  Court  of  Ohio,  1S59.    9  Ohio  St.  595.) 

This  is  an  action  of  covenant.  Reserved  in  the  district  court  of 
Licking  county.    The  case  stands  upon  demurrer  to  rejoinder. 

The  material  allegations  of  the  declaration  are  substantially  these: 
That  Taylor  (the  defendant's  testator)  conveyed  the  land,  which  is  the 
subject  of  the  covenant  sued  on,  to  Wilson,  the  plaintiff;  that  Wilson 
conveyed  to  Thomas  Legget ;  that  Legget  conveyed  to  William  Weis, 
who  went  into  possession;  that  all  these  conveyances  contained  like 
covenants  of  general  warranty  against  all  incumbrances  and  claims 
of  all  persons  whomsoever;  that  at  the  time  Taylor  made  his  deed 
and  covenants  to  Wilson,  one  Rebecca  Houston,  then  wife  of  John 
Houston,  Taylor's  grantor,  had  in  the  land  a  contingent  right  of  dower, 
which  became  absolute;  and  that  in  Taylor's  lifetime  she  filed  her  peti- 
tion against  Weis,  and  procured  dower  in  the  land  to  be  assigned  to 
her;  and  that  Weis^  thus  evicted  of  part  of  the  land,  brought  an  ac- 
tion upon  the  covenant  made  by  the  plaintiff,  Wilson,  to  Legget,  and 
recovered  a  judgment  against  the  plaintiff  for  $284.43,  and  costs  of  suit, 
which  he  was  compelled  to  pay.  To  make  himself  whole  again,  Wilson 
brought  this  action  on  the  covenant  made  by  Taylor  to  him. 

Taylor's  executors  plead,  in  substance,  in  bar  of  the  action,  that 

17  See  Booth  v.  Starr,  1  Conn.  244,  6  Am.  Dee.  233  (1814) ;  Kramer  v.  Carter. 
136  Mass.  504  (1884)   ace. 


Ch.  6)  COVENANTS  FOR  TITLE  777 

Weis  had  brought  an  action  against  Taylor  on  the  same  covenant  upon 
which  the  plaintiff,  Wilson,  sues,  and  had  recovered  judgment  against 
Taylor  for  its  breach  for  $280.23,  which  he  had  fully  paid. 

Wilson  replies  that  Weis  had  recovered  judgment  for  $414.43  against 
Legget  on  the  covenant  made  by  him  directly  to  Weis,  as  well  as  the 
judgment  against  die  plaintiff,  Wilson,  of  $284.43,  mentioned  in  the 
declaration,  and  the  judgment  of  $280.23  against  Taylor,  mentioned  in 
the  plea;  that  these  judgments  recovered  by  W^eis  were  on  the  succes- 
sive coyenants  made  by  Taylor,  Wilson,  and  Legget;  and  that  the 
recovery  of  dower  and  consequent  eviction  was  the  common  and  only 
breach  of  all  and  each  of  the  covenants ;  and  that  the  amount  of  the 
judgment  against  Legget,  to  wit,  $414.43,  was  the  true  amount  of  dam- 
ages sustained  and  proved  by  Weis ;  that  of  the  damages,  Taylor  paid 
only  $148.08,  and  that  the  plaintiff,  Wilson,  paid  $172.46,  and  costs 
and  expenses. 

To  this  Taylor's  executors  rejoin,  setting  up  the  same  defense  made 
by  their  plea.     To  this  rejoinder  Wilson  demurs. 

BrinkErhoff,  C.  J.  The  covenant  in  this  case  sued  on,  was  a  cove- 
nant -running  with  the  land ;  and  Weis,  the  last  grantee,  having  been 
evicted  from  part  of  the  land  embraced  within  the  successive  cove- 
nants of  warranty,  brought  several  actions  simultaneously  against  each 
of  the  successive  covenantors,  and  recovered  several  judgments  against 
each.  This,  it  seems  to  be  settled,  he  might  properly  do.  King  v. 
Kerr's  Adm'rs,  5  Ohio,  155,  22  Am.  Dec.  777  \  Foote  v.  Burnet,  10 
Ohio,  317,  36  Am.  Dec.  90,  and  notes.  But  though  he  might  have 
his  several  actions,  either  simultaneously  or  successively,  against  all 
his  covenantors,  whether  immediate  or  mediate,  yet  it  is  equally  well 
settled,  that  he  could  have  but  one  satisfaction. 

It  seems  that,  for  some  unexplained  reason,  judgment  in  these  sev- 
eral actions,  thus  simultaneously  brought  against  the  successive  cove- 
nantors, were  taken  for  very  different  amounts,  varying  from  about 
$280  to  about  $414.  And  Taylor,  the  first  covenantor,  having  paid 
and  satisfied  the  judgment  against  him,  and  which  was  amiong  the 
smallest  in  amount,  the  question  presented  by  the  demurrer  is,  whether 
this  satisfaction  of  the  judgment  against  him  is  a  bar  to  an  action 
over  against  him  by  the  plaintiff,  who  was  an  intermediate  covenantee, 
after  payment  by  the  latter  of  a  judgment  recovered  at  the  same  time? 

The  question  seems  to  be  one  of  first  impression,  and  our  minds  are 
not  free  from  difficulty  in  regard  to  it;  but,  on  the  whole,  we  are 
unanimously  of  opinion  that  the  plea  is  good.  As  before  remarked, 
Weis,  the  last  covenantee,  and  who  suffered  damage  by  reason  of 
partial  eviction,  was  entitled  to  his  several  action  against  all  the  prior 
covenantors.  Not  only  was  his  right  of  action  perfect  against  all,  but 
the  same  rule  of  damages  would  apply  as  to  all;  and,  although  he 
could  have  but  one  satisfaction,  yet  he  was  clearly  entitled  to  recover 
the  full  amount  of  his  damages  against  each.  If  he  failed  to  make  the 
proper  showing  in  order  to  recover  the  full  amount  of  his  damages 


778  DERIVATIVE  TITLES  (Part  2 

against  each,  it  was  his  own  fault;  and  having  collected  and  received 
the  amount  recovered  against  the  first  covenantor,  who  occupied  tlie 
position  in  law  of  a  guarantor  of  all  the  subsequent  grantees,  it  seems 
to  us  that  Weis'  claim  under  all  the  covenants  must  be  held  satisfied; 
and  that  all  enforcement  of  the  judgments  against  the  other  intermedi- 
ate covenantors  was  wrongful,  and  in  violation  of  the  principle  that 
he  could  have  but  one  satisfaction.  Taylor  ought  not  to  be  subjected 
to  different  actions,  and  liable  to  several  recoveries  for  the  same  breach 
of  the  same  covenant. 

It  follows  from  this  that  the  plaintiff  has  mistaken  his  remedy.  He 
ought,  after  the  satisfaction  by  Taylor  of  the  judgment  against  him, 
to  have  either  resorted  to  a  court  of  equity  to  restrain  the  collection 
of  the  judgment  against  himself,  or,  if  circumstances  forbade  that,  to 
have  sued  to  recover  back  the  money  he  had  paid  on  the  judgment 
against  him,  as  for  money  had  and  received  by  Weis  wrongfully,  and 
which  in  conscience  he  ought  not  to  retain. 

Demurrer  overruled,  and  caiuse  remanded.^* 

18  Release  of  Covenantor.  See  Middlemore  v.  Goodale,  Cro.  Car.  SO.I 
(16.39) ;  Chase  v.  Weston,  12  N.  H.  413  (1841) ;  Susquehanna  &  W.  Val.  Rail- 
road &  Coal  Co.  V.  Quick,  61  Pa.  32S  (1SG9). 

The  cases  above  given  under  the  heading  "covenants  for  title"  have  been 
selected  with  a  view  especially  to  the  development  and  presentation  of  the 
problems  arising  out  of  the  running  of  such  covenants  with  the  ''land,"  probably 
the  most  difficult  phase  of  the  general  subject.  On  this  and  other  phases  of 
the  subject,  the  student  should  further  consult  Rawle  on  Covenants  for  Title. 


Ch.  7)  ESTOPPEL  BY   DEED  779 

CHAPTER  VII 
ESTOPPEL  BY  DEED 


LITTLETON'S  TENURES. 

Also  these  words  which  are  commonly  put  in  such  releases,  scilicet 
(quae  quovismodo  in  f uturum  habere  potero)  are  as  void  in  law ;  for  no 
riyht  passeth  by  a  release,  but  the  right  which  the  releasor  hath  at  the 
time  of  the  release  made.  For  if  there  be  father  and  son,  and  the  fa- 
ther be  disseised,  and  tlie  son  (living  his  father)  releaseth  by  his  deed 
to  the  disseisor  all  the  right  which  he  hath  or  may  have  in  the  same 
tenements  without  clause  of  warrantie.  &c..  and  after  the  father  dietli, 
&c.,  the  son  may  lawfully  enter  upon  the  possession  of  tlie  disseisor, 
for  that  he  had  no  right  in  the  land  in  his  father's  hfe  (pur  ceo  que  il 
n'avoit  droit  en  la  terre  en  la  vie  son  pier)  but  the  right  descended  to 
him  after  the  release  made  by  the  death  of  his  father,  &;e. 
"Section  446.  ^T^  '     y^^Jj,^  A<->C«   (^{l^  ru>4j>^^^  K-«i 

COKE  UPON  LITTLETON. 

Note,  a  man  may  have  a  present  righj,  though  it  cannot  take  effect 
in  possession,  but  in  futuro. 

As  he  that  hath  a  right  to  a  reversion  or  remainder,  and  such  a  right 
he  that  hath  it  may  presently  release.  But  here  in  the  case  which  Little- 
ton puts,  where  the  son  release  in  the  life  of  his  father;  this  release  is 
void,  because  he  hath  no  right  at  all  at  the  time  of  the  release  made. 
but  all  the  rip^ht  was  at  thnt  time  in  th^  father;  h"t  ^f^er  the  decease 
o_f..the  father,  the  son  shall  enter  into  the  land  against  his  own_  re- 
lease^   *     *     * 

"Without  clause  of  warrantie."  For  if  there  be  a  warrantie  annexed 
tp  the  release,  then  the  son  shall  be  barred.  For  albeit  the  release  can- 
not bar  the  right  for  the  cause  aforesaid,  yet  the  ^yarrantie  may  rebut. 
and  bar  him  and  his  heirs  of  a  future  right  which  was  not  m  him"at 
that  time :  and  the  reason  (which  in  all  cases  is  to  be  sought  out)  where-  « 

fore  a  warrantie  being  a  ^^yyenant  xeal-  should  bar  _a .  future  rig^ht,  js 
for  avoiding  of  circuity  of  action  (which  is  not  favoured  in  law) ;  as  he 
that  made  the  warrantie  should  recover  the  land  against  the  ter-tenant, 
and  be  by  force  of  the  warrantie  to  have  as  much  in  value  against  the 
same  person.    §  265a. 


780  DERIVATIVE  TITLES  (Part  2 

A)  JACKSON  ex  dem.  McCRACKIN  v.  WRIGHT. 

V       A  (Supreme  Court  of  New  York,  1817.     14  Johns.  193.) 

y      .  ^  This  was  an  action  of  ejectmeot.  brought  to  recover  200  acres  of 

\5  land,  on  the  west  side  of  lot  No.  60,  in  the  town  of  Sterhng.     The 

lJ['  cause  was  tried  before  Mr.  Justice  Yates,  at  tlie  Cayuga  circuit,  in  1816. 

tr  Peter  Boise,  bv  deed  poll,  dated  the  5th  of  Julv.  1794.  and  which 

was  recorded  on  the  12th  of  Tune.  1807.  wherein  he  is  described  as  lat£ 

private  in  the  first  New  York  regiment,  in  consideration  of   f^rty 

pounds,  granted,  bargained,  sold,  and  quit-claimed  to  the  lessor  of  thg 

plaintiff,  in  fee,  "all  that  militarv  right,  or  parcel  of  land,  granted  to 

him  as  bounty  lands,  for  his  services  in  the  regiment  aforesaid,  duripg 

the  late  war."     The  deed  contained  no  covenants  or  warranty. 

On  the  2d  of  April,  1806,  an  act  was  passed  by  the  legislature  of 
this  state  (Laws  1806,  c.  95),  entitled,  "An  act,  for  the  relief  of  Peter 
Boise,  and  others,"  by  which  it  was  enacted,  "that  it  shall  and  may  be 
lawful  for  the  commissioners  of  the  land  office,  and  thev  are  hereby 
required  to  grant  letters  patent  to  Peter  Boise,  late  a  soldier  in  the  first 
New  York  regirnent,  commanded  by  Colonel  Goose  Van  Schaick,  in  the 
Ime  of  the  army"  of  the  United  States,  and  his  heirs  and  assigns  foreyer, 
for  the  quantity  of  two  hundred  acres  of  land,  in  the  tract  set  apart  for 
the  use  of  the  line  of  this  state,  serving  in  the  army  of  the  United 
States,  as  a  gratuity  for  his  services  and  sufferings  in  the  l^^te  revolu- 
tionary war :_  provided,  that"5ie  grant  shall  be  to  the  said  Peter  Boisej 
during  his  life  only,  and  afterwards  to  his  heirs  in  fee."  In  pursuance 
of  this  act,  letters  patent,  bearing  date  the  20th  of  November,  1806, 
for  the  premises  in  question  were  issued  to  Peter  Boise,  under  the 
great  seal  of  the  state. 

The  judge  ruled,  that  the  act  of  the  Legislature  above  mentioned, 
was  a  private  act,  and  that  the  deed  from  Boise  to  the  lessor  of  the 
plaintiff,  being  prior  in  date  to  the  patent,  did  not  entitle  him  to  recover. 
A  verdict  was  accordingly  rendered  for  the  defendant. 

The  plaintiff  moved  for  a  new  trial,  and  the  case  was  submitted  to 
the  court  without  argument. 

SpEnce^r,  J.  The  decision  of  the  judge  at  the  circuit,  was  correct, 
on  two  grounds :  ^ 

2.  The  deed  from  Boise  to  McCrackin  is  a  bargain  and  sale,  and  quit 
claim,  and  he  had  then  no  title  to  convey  in  the  premises ;  and  no  title, 
not  then  in  esse,  would  pass,  unless  there  was  a  warranty  in  the  deed ; 
in  which  last  case,  it  would  operateas  an  estoppel,  for  avoiding  circuity 
ot  action.  (Co.  Lit.  sect.  446,  2657a  and  b ;  Bennett  v.  Irwin,  3  Johns. 
.366.) 

Motion  denied. 

1  The  court's  opinion  covering  the  first  ground  Is  omitted. 


<Vi 


Ch.  7)  ESTOPPEL  BY  DEED  781 

BAYLEY  V.  McCO\. 

(Supreme  Court  of  Oregon,  18S0,    S  Or.  259.) 

Prim,  J.  This  was  ^n  action  to  recover  damages  for  an  alleged 
breach  of  certain  covenants  in  a  deed.  On  May  23,  1870,  John  H. 
Kendall  and  wife,  for  a  valuable  consideration,  sold  a  certain  lot  in  the 
town  of  Corvallis,  Benton  county,  Oregon,  to  James  R.  Bayley,  and 
then  and  there  made,  executed,  and  delivered  to  him  their  deed  for  the 
same,  as  follows :  "That  the  party  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of  eight  hundred  dollars  to  them  in  hand  paid, 
*  *  have  bargained,  sold,  and  conveyed,  unto  the  said  party  of 
the  second  part,  the  following  described  premises,  to  wit :  All  of  thgjr 
right,  title,  and^  interest  in  and  to  lot  number  one . jaJblock.  number 
eWen,  in  the  city  of  Corvallis,  Benton  county,  and  state  of  Oregon,_to 
have  and  to  hold  the  said  premises,  with  their  appurtenances,  unto  the 
said  Tames  R.  Bayley,  his  heirs  and  assigns  forever.  And  the  said 
John  H.  Kendall  does  hereby  covenant  to  ^nd  with  the  said  Tames  R.  ^, 

Bayley,  his  heirs  and  assigns,  that  I  am  the  owner  in  fee  simple  of  (c)^gAA»<y^ 
said  premises ;  that  they  are  free  from  all  incumbrances,  and  that  I 
w^l_warrant_and  defend  the  same  from  all  lawful  claims  whatsoever." 
Tna^ttn^nrne  when  said  deed  was  made,  the  said  Kendall  was  not  /  jn^ 

the  owner  of  any  portion  of  said  lot  except  the  south  half  thereof,  and  ^^•'*'**' 
neither  he  nor  his  heirs  have  warranted  or  detended  tne  said  premises  A{^7t^    J'    * 
to  the  said  Bayley,  but  on  the  contrary,  at  the  time  when  said  deed  was  *''' 

made  and  delivered  to  him,  the  north  half  of  said  lot  was  seised  and 
possessed  by  the  Corvallis, LQd.ge,.  No.  14.  Ancient  Free  anid  Accepted 
Masons,  of  Benton  county,  Oregon,  by  virtue  of  an  older  and  better 
title.     Said  Kendall  having  died  prior  to  the  commencement  of  this  ^m 

action  intestate,  it  was  brought  against  appellant  as  the  administratrix     ^Mf"^^"^^^^ 
of  his  esLaj£.  '7'/      Y^JbumJU 

The  answer  of  appellant,  after  denying  certain  allegations  of  the  ^^  , 

complaint,  sets  up  as  a  separate  defense :    That  at  the  time  when  said  A'V^iC'**^VH-^ 
Kendall  made  the  deed  mentioned  in  the  complaint  in  this  cause,  he  did 
not  sell  or  convey  to  the  respondent  all  of  said  lot  number  one  in  block 
number  eleven,  b^ut^that  he  sold  only  the  right,  title,  and  interest  he 
then  had  in  said  lot,  which  was  the  south  half  of  said  lot;  that  at  the 
time  of  making  said  deed,  the  said  Kendall  was  the  owner  in  fee  sim- 
ple of  the  south  half  of  said  lot.    That  said  south  half  was  all  that  said 
Kendall  attempted  to  convey  to  respondent  by  said  deed,  and  was  all 
that  had  been  bargained  for  by  him  at  the  time,  and  was  all  th.git  said^ 
coyenant  of  title  related  to,  and  was  so  understood  at  the  time  of  said_ 
gurchase.     A  demurrer  was  interposed  to  this  part  of  the  answer, 
which  was  sustained  by  the  court,  and  judgment  rendered  against  Jhe 
appellant,  from  which  \\e.  appeals.     The  order  and  judgment  of  the 
court  sustaining  the  demurrer  to  this  portion  of  the  answer,  is  the 
principal  and  main  ground  of  error  complained  of  here. 


782 


DERIVATIVE   TITLES 


(Part  2 


It  was  clairpp^  pri  tlip  argument,  that  the  deed  only  purports  to  con- 
vey such  right,  title,  and  interest  as  the  grantor  then  had  in  said  Jot 
one,  and  no  more,  and  the  covenants,  although  more  general,  should  be 
held  to  have  reference  only  to  such  right  and  title  as  the  grantor  then 
had  in  said  lot,  whatever  that  might  be.  This  doctrine  appears  to  be 
maintained  by  the  decisions  of  Massachusetts  and  one  or  two  other 
states;  but  the  modern  decisions  of  the  most  of  the  state  courts,  and 
of  the  supreme  court  of  the  Uniterl  ,'^tatp^^  maintain  a  contrarv  doc- 
trine. They  hold  that  "whatever  may  be  the  form  or  nature  of  the 
pnveyance  used  to  pass  real  property,  if  the  o-rantnr  sets  forth  on  the 
face  of  the  instrument  by  way  of  recital  or  averment^  that  he  is  seised 
or  possessed  of  a  particular  estate  in  the  _premiseSj.  and  which  estate 
the  deed  purports  to  convey;  or  what  is  the  same  thing,  if  the  seisin 
or  possession  of  a  particular  estate  is  affirmed  in  the  deed,  either  in 
express  terms  or  by  necessary  implication,  the  grantor  and  all  persons 
in  privity  with  him  shall  be  estopped  from  ever  afterwards  deiiying 
"aTFewas  so  seised  and  possessed  at  the  time,  he  made  the  convey- 
ance." Van'  Rensselaer  v,  Kearney,  11  How.  325,  13  L.  Hd.  703; 
Fairbanks  v.  Williamson,  7  Greenl.  (Me.)  96 ;  Jackson  ex  dem.  JMunroe 
V.  Parkhurst,  9  Wend.  (N.  Y.)  209.  In  Taggart  v.  Risley,  4  Or.  235, 
this  court  adopted  that  doctrine,  and  that  case  we  think  is  decisive  of 
this  one. 

Mr.  Rawle,  in  his  work  on  Covenants,  in  commenting  on  this  sub- 
ject, says:  "When,  however,  it  has  distinctlv  appeared  in  such  convev- 
ance,  either  by  a  recital,  an  admissipn.  a  covenant,  or  otherwise,  that 
the  parties  actually  mtended  to  convey  annrecenre  reciprocally  a  cer- 
tain estate,  thev  have  been  held  to  be  estopped  from  denying  the  opera- 


tion of  the  deed,  according  to  this  intent."  Rawle  on  Covenants,  388 ; 
Jackson  v.  Waldron,  13  Wend.  (N.  Y.)  178.  By  reference  to  the  deed, 
it  will  be  seen  that  Kendall  and  wife  "bargained,  sold,  and  conveyed 
:!=  *  *  |.j.jg  following  described  premises,  to  wit:  All  their  right, 
title,  and  interest  in  and  to  lot  number  one  in  block  number  eleven." 
And  there  it  is  asserted  by  way  of  covenant,  "that  he  wa,s  owner  in  fee 
siniple  of  said  premises,  and  that  he  would  warrant  and  ^defend  tb£ 
same  from  any  lawful  claims  whatsoever."  The  word  "premises"  evi- 
dently refers  to  the  who^*^  '^^  ^nt  nnmhpr  nn'".  d"^^''''^^d  in  the  deed,  and 
not  to  one  half  of  it,  as  Js  contended_by  Jhe  appellant.  We  think  that 
the  appellant  is  estopped  by  the  recitals  and  covenants  of  this  deed  from 
averring  and  proving  the  matters  sought  to  be  set  forth  in  the  answer 
as  a  defense  to  this  action. 

There  being  no  error  in  the  record,  the  judginent  of  the  court  below 
is  affirmed. 

Kelly,  C.  J.  (dissenting).  I  do  not  concur  in  the  opinion  of  the 
court,  and  will  briefly  give  the  reasons  for  my  dissent.  It  is  conceded 
that  the  deed  of  ].  H.  Kendall  _and  wife  to  T.  R.  Bayley  conveyed  to 
the  latter  only  the  right,  title,  and  interest  which  thev  had  in  lot  one  iii 
block  eleven^  and  not  the  lot  itself ;  but  the  court  holds  that  the  cove- 


Cll.  7)  ESTOPPEL  BY   DEED  783 

nant  of  Kendall  and  wife  that  they  were  the  owners  in  fee  simple  of 
the  premises,  is  a  covenant  that  they  were  the  owners  of  the  entire 
lot.  I  do  not  so  understand  it.  The  deed  conveyed  only  the  interest 
which  the  grantors  then  had  in  the  lot.  The  hahendum  limits  the  estate 
then  granted  to  the  interest  which  they  then  had  in  the  premises,  and 
the  warranty  is  that  they  were  the  owners  of  the  premises.  I  do  not 
consider  that  the  word  premises,  as  here  expressed,  means  the  entire 
lot,  but  only  the  interest  which  the  grantors  then  sold.  If  they  had  cov- 
enanted  that  they  were  the  owners  of  lot  number  one,  then  there  would 
have  been  no  doubt  of  their  liability  in  this  action.  I  think  this  posi- 
tion is  supported  by  the  decision  of  the  supreme  court  of  Massachu- 
setts in  the  case  of  Sumner  v.  Williams^  8  Mass.  162,  5  Am.  Dec.  83, 
and  is  not  in  conflict  witli  the  case  of  Taggart  v.  Risley,  decided  by 
this  court  in  4  Or.  235. 


HANNON  V.  CHRISTOPHER. 

(Court  of  Chancery  of  New  Jersey,  1S81.     34  N.  J.  Eq.  459.) 

Van  Fi.ee;t,  V.  C.     The  defendant  seeks_to  have  an  injunction, 
which  has  been  granted  against  the  further  prosecution~or  an  action 
of  ejectment,  dissolved.     The  facts  on  which  the  motion  must  be  de-  — 
cided  are  undisputed.     They  show  that  Mary  Vermilya  died  seized  in  ^-<>%/v|.«^ . 
fee  of  the  lands  in  dispute,  in  1824.  leaving  a  will,  in  which  she  "^^de  k^^r^  MxatJ^I 
/"the  following  devise :    "And  also  I  give  and  devise  all  my  real  estate,  ^"^lA 
\  whatsoever  ajid.  wheresoever.,  unto  my  niece,  Mary  Ann  Jarvis,  my 
A  mother,  Sarah  Vermilya,  and  my  brother,  Thomas  Vermilya,  to  the 
V^survivor  of  them,  and  to  the  heirs  and  assigns  of  such  survivor.'' 

The  lands  in  dispute  passed  bv^liis  devise.  The  devisees  died  in 
the  following;)  order :  First,  SararrVermilya,  March  30th,  1834,^sec- 
ond,  MarV-^mn  Jarvis,  January  29th,  1846,  and,  lastly,  Thon-fasWer- 
niilv_a^.  in  September,  1853.  Mary  ^Ann  Jarvis  married  Thomas  S. 
Christopher  January  9,  1840,  and  had  by  him  two  children,  viz.,  the 
defendant  (Thomas  V.  J.  Christopher)  and  James  J.  V.  Christopher. 
Thomas^Vermdya,  shortly  after  the  death  of  his  mother,  Sarah  Ver- 
milya, and  on  the  10th  of  October,  1834,  conveyed  the  lands  in  dis- 
pute to  Mary  Ani?^arvis,  by  deed  containing  the  following  recitals;. 
"Whereas,  Mary  Vermilya,  late  of  the  city  of  New  York,  deceased, 
^as  in  her  lifetime  seized  in  fee  simple  of  and  in  certain  lots  of  land, 
hereinafter  particularly  described ;  and  whereas,  the  said  Mary  Ver- 
milya did,  in  and  by  her  will,  by  her  duly  made  to  pass  real  estate, 
bearing  date  September  2d,  1824,  give  and  devise  all  her  real  estate,  \  §  ^UaA^ 
whatsoever  and  wheresoever,  unto  her  niece,  Mary  Ann  jarvis,  hev 
mother.  Sarah  Vermilya.  and  her  brother,  Thomas  Vermilya.  to  the 
survivor  of  them,  and  to  the  heirs  and  assigns  of  such  survivor;    and  '.  j 

whereas,  Sarah  Vermilya,  my  motlier,  i^s  now  .dead,  and  the  said  prop-  '• 

erty  is  now  vested  in  me,  the  said  Thomas  Vermilya,  and  Mary  Ann 


.F 


r' 


a 


784 


DERIVATIVE   TITLES 


(Part  2 


=e. 


Jarvis,  in  fee  simple,  and  I.  the  said  Thomas  Vermilva.  beiiisf  Heslrous 
of  vesting  the  whole  in  mv  niere^  Mary  ^nn  jarvis,  now  this  inden- 
ture witnesseth,"  &c. 

The  deed  then,  in  consideration  of  the  sum  of  $100,  grants,  bargains 
and  sells  unto  Mary  Ann  Jarvis,  and  to  her  heirs  and  assigns,  all_the 
grantor's  estate,  right,  title  and  interest  whatsoever,  under  the  will  of 
Mary  Vermilya  or  otherwise,  ot,  m  and  to  the  lands  therein  described. 
The  deed  is  without  covenants,  but  the  habendum  declares  that  the 
grantee,  and  henieTfs~and^  'assigns,  shall  have  and  hold  the  lands,  to 
her  and  their  use,  absolutely^  loreveri     '  ^ 

On  the  6th  of  September,  1844,  Mary  Ann  Jarvis,  together  with 

her  husband,  Thomas  S.  Christopher,  by  deed  containing  covenants 

f  yTlfr.aL:arajraaty,  conveyed  the  lands  in  dispute  to  John  Arbuckle. 

t;i'nrp  tlnpn^  in  inVt-n^  nf  peveral  nipsnp  rnnvcyances,  they  have  become 

vested  in  the  complainant.    No  dispute  is  raised  respecting  tlie  regular- 


ity of  the  complamant  s  title;  the  objection  to  her  case  goes  deeper;  Jt 
is  denied  th?it  thp.emn-^p  fr^^m  which  she  derived  her  title  could  grant  a 
fee, 

Thomas  Vermilya,  the  survivor  of  the  three  devisees,  died,  as  al- 
ready stated,  in  September,  1853.  He  left  a  will,  by  which  he  gave 
his  whole  estate  to  the  defendant  (Thomas  "V".  T.  (^hristoplTer")  and  to 


^ 


the  defendant's  brother,  James  J.  V.  Christophen  and  to  the 
ant's   father.  Thomas   S.   Christopl,ien     The   defendant's   father 


defend- 

and 

brother  both  subsequently  died  intestate,  and  without  leaving  any  other 
relative  as  near  in  blood  as  he;  consequently,  the  wllol^SSJate  of 
which  Thomas^^ermilva  was  seized  at  the  time  of  hisoeath  is  now 
vested  in  the  defendant.  The  defendant,  under  a  claim  that  the  deed  ii 
from  Thomas  Vermffya  to  Mary  Ann  Jarvis  passed  only  a  life  estate, 
and  that  the  fee  is  now,  vested  in  him,  has  brought  an  action  of  eject- 
ment against  one  of  the  complainant's  tenants.  That  suit  has  been 
enjomed  at  the  instance  of  the  complainant,  and  the  question  now 
before  \he-  rnnrt  is.  whether  or  not,  on  the  facts  first  narrated,  the 
defendant  is  entitled  to  have  that  injunction  clissolve"3T""  The  rnain  topic 
of  debate  presented  by  the  case  is.  whether "orTiot  the  deed  ot  1834, 

lade  by  Thom^  to  Mary  Ann,  should  be  adjudged  to  have  created 
In  estoppel,  which  should  debar  Thomas,  and  those  standing  in  his 
•ights,  from  asserting  a  claim  to  the  estate  subsequently  cast  upon  him 
by  the  death  of  jytar^y  Ann.  ^At  the  time  Thomas  made  that  deed,  it 
is  admitted  he  was  seized  of  onlv  a  life  estate,  with  .a  possibilitv JJiai: 
the  contingent  remainder  in  fee  might  vest  in  him  as  survivor. 

The  legal  construction  of  the  devise  is,  in  my  judgment,  entirely 
clear.  The  three  devisees  took  a  joint  estate  for  life,, with  contin.tyen1- 
remainder  in  fee  to  the  survivor.  Under  our  svstem  of  real  prooertv 
1  aw,  neither  words  of  inheritance  nor  perpetuity  are  necessary  to_2iss 
a  fee  by  will.  By  the  common  lav/  tliey  were,  but  a  devise  to  A  and 
his  assigns  torever,  or  to  A  and  his  heir,  would  pass  a  fee.  4  Com. 
Dig.  161,  tit.  "Estate  by  Devise,"  n.  (4).    So  a  devise  to_on£_et  sanguini 


^^' 


•^Y^'/ 


Ch.  7)  ESTOPPEL   BY   DEED  785 

SUP  would  pass  an  estate  of  like  quantity.     Gilbert  on  Dev.  19.    By  a 

statute  passed  in  1784,  it  is  enacted  that  all  devises  in  which  the  words 

heirs  and  assigns,  or  heirs  and  assigns  forever^  are  omitted,  fl^d  no     jt/jJ^^  ^/ 

expressions  are  contained  whereby  it  shall  appear  that  such  devise  was  ^  J 

intended  to  convey  an  estate  for  life  only,  shall  be  construed,  deemed 

and  adiudg^ed.  in  ^11  rnnrt'.  nf  la\y  and  equity,  to  convey  an  estate  in 

fee  simple  in  as  full  a  manner  as  if  the  lands  had  been  g-iven  to  the 

devisee,   and   to  his   heirs  and  assigns   forever.     Rev.   p.  300,  §    13. 

Hence,  as  the  law  stands,  a  devise  to  A,  simpliciter,  in  which  nothing" 

appears  indicating  a  purpose  to  give  him  only  a  life  estate,  will  create 

a  fee.     In  view  of  the  provisions  of  this  statute,  it  is  clear  that  if  the  ^^^ 

dcA^se  in  this  case  had  been  to  the  three,  and  to  the  survivor,  without  _^^»-V«^ 

more,  the  survivor  would  have  taken  the  fee,  and  such,  obviously,  in 

view  of  die  terms  of  this  devise,  must  have  been  the  construction  it 

would  have  received  according  to  the  common  law,  and  in  the  absence 

of  a  statute  like  that  just  cited.     A  devise  to  two,  and  the  survivor 

of  them,  and  the  heirs  of  such  survivor,  gives  them  a  joint  estate  for 

life  only,  with  contingent  remainder  in  fee  to  the  survivor.    2  Fearne 

on  Rem.  66,  §  187  a;   Vick  v.  Edwards,  3  P.  Wms.  372. 

Thomas  Vermilva,  then.  prrnrHinp;  to  \he  legal  construction  of  thi s 
devise,  became  seized  of  the  fee  of  the  lands  in  dispute  on  the  death  ^jL^^i^  /X 
of  his  niece,  ^Mary  Ann  Christopher.  The  defendant  stands  in  his 
place,  with  no  greater  rights  or  higher  equity!  Me  is  sirriply  the  donee 
of  Thomas,  and  the  case  must  be  decided  in  the  same  manner  that 
it  would  be  if  Thomas  were  the  person  seeking  to  dissolve  this  in- 
junction. Tlig_recitals  of  the  deed  made  by  Thomas  to  Mary  Ann 
shojfc^  beyond  all  question,  that  the  estate  about  which  they  were  deal- 
ing,  and  which  Thomas  intended  to  convey,  and  Ma^'y  ^nn  f>-pp^tf»rl 
to  get,  \vas  the  fee.  ~Tt  is  incontrovertible  that  the  decisive  and  con- 
trolling representation  of  the  deed  is  that  in  which  it  is  said,  that  "the 
said  property  is  now  vested  in  me,  Thomas  Vermilya,  and  my  niece, 
Mary  Ann  Jarvis,  in  fee  simple."  They  manifestly  dealt  on  the  basis 
that  they  were  the  owners,  absolntely  of  a«;  great  and  RS  pprfprt-an 
estate  as  it  is  possible  to  hold  in  lands. 

Do  the  recitals  of  this  deed  create  an  estoppel  against  Thomas  ? 

There  is  an  apparent  conflict  in  the  adjudicationslipon  the  questio 
whether  a  deed  of  bargain  and  sale.  withot:|t  warranty  of  title,  but 
containing  recitals  "sJiowing  that  the  parties  eviaentlyQeairunder  a 
belief  that  the  grantor  was  seized  of  a  greater  estate  in  the  lands  than 
he  actually  had  at  the  time  of  its  execution,  will  bind  or  transfer,  by 
e.stoppel._  a  contingent  subsequently  acquired  estate.  Some  seem  to 
hold  that  a  grant  in  this  form  is  utterly  inefficacious  to  pass  an  estate 
not  yet  vested,  and  can  only  operate  as  a  conclusion  between  the  par- 
ties and  their  privies  on  an  estate  vested  at  the  time  of  its  execution ; 
while  others,  resting  upon  a  much  more  liberal  and  just  basis,  hold  that 
whether  a  contingent  or  an  after-acquired  interest  will  pass  by  estop- 
Aig.Peop. — 50 


(D 


The  U^if% 


rsG 


DERIVATIVE   TITLES 


(Part  2 


pd,  as  the  result  of  a  conve3'ance  in  this  form,  depends  entirely  upon 
\vhether  it  was  the  intention  of  the  parties  to  convey  it.^nd  that  when- 
ever it  clearly  appears  that  such  was  their  intention,  it  is  the  duty  of 
the  court  to  adjudge  an  estoppel,  in  order  that  the  deed  may  he  ra.r- 
ried  into  effect  according  to  the  minds  of  the  parties.  No  review  of 
the  learning  on  this  subject  will  be  attempted.  The  limits  of  a  judi- 
cial opinion  are  neither  sufficient  nor  adapted  to  such  an  undertaking. 
The  cases  will  be  found  collected  in  the  American  notes  to  the  Duchess 
of  Kingston's  Case,  2  Smith's  L.  C.  623  et  seq. 

In  my  opinion,  the  latter  view  is  the  correct  one.  It  commends  it- 
self to  my  sense  of  justice  as  being  in  entire  accord  with  certain  funda- 
mental doctrines  of  the  law,  and  it  is  obviously  better  adapted  to  pro- 
mote and  further  justice  than  its  opposite.  It  appears  to  be  a  natural 
deduction  from,  if  not  an  actual  exemplification  of,  that  great  prijnci- 
ple  which  declares  that  in  searching  for  the  meaning  of  an  instrument, 
that  interpretation  shall  prevail  which  is  "as  near  the  minds  and  ap- 
parent intent  of  the  parties  as  it  possibly  may  be,  and  the  law  will  pgr- 
mit.!.'  Shep,  Touch,  ch,  V,  p.  85.  And  "if  it  cannot  operate  in  one 
form,  it  shall  operafp  ir»  tV.Q<-  whj^h,  by  ^^^''^l  '"'^^'^^  pff^c-tuate  the  inten- 
tio^j>f  the  prirties".   Goodtitle  v.  Bailey,  Cowp.  597. 

The  most  accurate  and  lucid  statement  of  the  essentials  of  such  an 
estoppel  that  has  come  under  my  observation,  is  that  given  by  Mr. 
Justice  Nelson,  in  pronouncing  the  opinion  of  the  supreme  court  of 
the  United  States,  in  the  case  of  Van  Rensselaer  v.  Kearney,  11  How. 
297,  301  (13  L.  Ed.  703)  in  which  he  says:  "That  if  tlie  deed  bears 
on  its  face  evidence  that  the  grantor  intended  to  convey,  and  the  gran- 
tee expected  to  become  invested  with  an  estate  of  a  particular  descrip- 
tion or  quality,  and  that  the  bargain  proceeded  upon  that  footing^e- 
tween  the  parties,  then,  although  it  may  not  contain  any  covenants  of 
lltle,_in  the  technical  sense  of  the  term^  still,  the  legal  operation  and 
effect  of  the  instrument  will  be  as  binding  upon  the  grantor  and  those 
claiming  under  him,  in  respect  to  the  estate  thus  described,  as  if  a 
formal  covenant  to  that  effect  had  been  inserted,  at  least  so  far  as  to 
>  estop  them  trom  ever  afterward  denying  that  he  was  seized  of  the  par- 
ticular estate  at  the  time  of  the  conveyance." 

Then,  after  a  careful  examination  of  several  previous  adjudications, 
both  by  the  courts  of  England  and  of  this  country,  he  further  says: 
"The  principle  deducible  from  the  authorities  seems  to  be  that  what- 
ever may  be  the  form  and  nature  of  the  conveyance  to  pass  real  prop- 
erty, if  the  grantor  sets  forth  on  the  face  of  the  instrument,  by  way  of 
recital  or  averment,  that  he  is  seized  or  possessed  of  a  particular  es- 
tate in  the  premises,  and  which  estate  the  deed  purports  to  convey, 
*  *  the  grantor,  and  all  person^n  privity  with  him,  shall  be 
estopped  from  ever  afterwards  denying  that  he  was  so  seized  and  pos- 
sessed at  the  time  he  made  the  conveyance.  The  estoppel  works  upon 
the  estate,  and  binds  an  after-acquired  title  as  between  the  parties  and 
privies.    The  reason  is,  that  the  estate  thus  affirmed  to  be  in  the  party 


Ch.  7)  ESTOPPEL  BY  DEED  787 

at  the  time  of  the  conveyance,  must  necessarily  have  influenced  the 
grantee  in  making  the  purchase,  and  hence  the  grantor  and  those  in 
privity  with  hmi,  in  good  faith  and  fair  dealing,  should  be  forever 
thereafter  precluded  from  gainsaying  it." 

The  rule  thus  established  vi^as  subsequently  affirmed  in  French  v. 
Spencer,  21  How.  228,  16  L.  Ed.  97,  Chancellor  Walworth,  prior  to 
the  decision  of  Van  Rensselaer  v.  Kearney,  had  enunciated  the  same 
doctrine,  substantially,  in  giving  his  opinion,  as  a  judge  of  tlie  court 
of  errors  of  New  York,  in  Jackson  v.  Waldron,  13  Wend.  (N.  Y.) 
178;    and  his  formula  of  the  rule  was  subsequently  quoted  and  ap- 
proved in  Fitzhugh  v.  Tyler,  9  B.  Mon.  (Ky.)  559.     The  learned  edi- 
tor of  the  American  notes  to  the  Duchess  of  Kingston's  case,  states 
that  the  fair  result  of  the  more  recent  cases  would  seem  to  be,  that    xO 
^vhenever  the  terms  of  the  deed,  or  of  the  covenants  which  it  contams,  / /y^  ^     ^-^,^?'^ 
clearly  show  that  it  was  meant  to  convey  an  absolute  and  indefeasible  >^ '"^^^^'^ 
title,  and  not  merely  that  which  the  grantor  has  at  the  time,  it  will  biiTH     O-'^-t"*-^ 
and  pass  every  estate  or  interest  which  may  vest  in  him  subsequent  to 
its  execution,  whether  the  warranty  which  it  contains  be  general  or       ..^"nL.^-!^^^-^ 
special,  and  although  it  may  contain  no  warranty  whatever.    2  Smith's  " 

L.  C  636.  In  the  language  of  Mr.  Justice  Nelson,  it  is  clear  that  this 
doctrine  is  founded  upon  the  highest  principles  of  morality,  and  recom- 
mends itself  to  the  justice  and  common  sense  of  every  one. 

But  for  the  presence  of  another  fact  in  the  recitals  of  this  deed, 
viz.,  a  correct  recital  of  the  terms  of  _the  devise.  1  think  it  might  very 
properly  be  declared,  at  this  point,  without  further  consideration,  that 
the  defendant  is  estopped.  The  presence  of  this  fact  makes  the  re- 
citals, in  their  legal  essentials,  flatly  contradictory.  The  grantor  says 
that  he  and  his  grantee  hold  the  lands  in  fee ;  but  in  stating  the  facts 
from  which  this  conclusion  is  deduced,  he  shows,  at  least  to  the  pro- 
fessional mind,  that  his  deduction  is  entirely  unwarranted.  Now,  it 
cannot  be  doubted  tliat  it  was  originally  held  that  there  could  be  no 
estoppel  by  deed  where  the  truth  appeared  on  the  face  of  the  instru- 
ment. 4  Com.  Dig.  205,  tit.  "Estoppel"  (E  2) ;  Sinclair  v.  Jackson,  8  | 
Cow.  (N.  Y.)  543;  Pelletreau  v.  Jackson,  11  Wend.  (N.  Y.)  Ill;  Jef- 
ferys  v.  Bucknell,  2  Barn.  &  Ad.  278;  Wolling  v.  Camp,  19  N.  J.  Law, 
148.     But  this  rule,  like  all  other  legal  rules,  was  formnbted  for  the      /  '  ^^ 

doing  of  justice,  and  when  it  cannot  be  used  for  that  purpose,  but  its  ^^'^^   fl  ^^ 
enforcement  will  lead  to  injustice  or  wrong,  it  should  be  disregarded.   k/"^C4-*»-.  V*-*-^ 
Equity  recognizes  no  rule  as  binding  which  will  constrain  it  to   do 
injustice. 

Recently  this  rule  has  been  repudiated  by  three  of  the  superior 
courts  of  England — chancery,  exchequer  chamber  and  queen's  bench. 
In  the  court  of  chpnrpry,  T,nrrl  Thelinsford  declared  that  the  appear- 
ance of  the  truth  on  the  face  of  the  deed  constituted  a  reason  rather 
why  the  .party  should  be  held  to  be  estopped,  than  that  he  .should -he. 
permitted  to  gainsay  or  disprove  what  he  ha4  previously  adniitjted  or 
alleged.    I  quote  his  words :   "It  appears  to  me  that  the  circumstance 


|(72w«^ 


^<yt--i^u*^ 


788  DERIVATIVE  TITLES  (Part  2 

oj  the  truth  of  the  case  appearing^  upon  the,  deed.  i«^  n  rff"^'^"  'V^I^Y  ^^^^ 
agreement  of  the  parties,  which  it  embodies,  should  be  carried  out, 
either  by  giving  effect  to  their  intentions  in  the  manner  which  they 
have  prescribed,  or,  by  way  of  estoppel,  toprevent  their  denying  the 
right  to  do  the  acts  which  they  have  authorized  to  be  done."  Jolly  v. 
Arbuthnot,  4  De  G.  &  J.  224. 

And  Chief  Baron  Kelly,  in  giving  his  opinion  in  Morton  v.  Woods, 
L.  R.  (4  Q.  B.)  293,  said  that  if  there  were  anv  decisions  or  dicta 
which  held  tbnt  wVipre  the  truth  appears  tliere  can  be  no  estoppel, 
that  doctrine  must  now  be  considered  overruled ;    and  he  thought  it 

had  been  rightly  overruled The  same  case,  when  before  the  court 

of  queen's  bench  was  decided  in  the  same  way.     L.  R.  (3  O.  B.)  658. 

Now  it  cannot  be  dpnied  |hat  the  truth  appears  on, the  face  of  the 
deed  under  consideration,  but  it  is  also  entirely  clear  tliat  the  parties 
dealt  with  each  other  as  though  it  did  not  appear  there.  It  must  also 
be  admitted  that  what  is  false,  as  well  as  what  is  true,  is  declared  on 
the  face  of  this  instrument,  and  that  the  parties  dealt  with  each  other, 
obviously,  understanding  that  truth  and  falsehood,  in  this  instance,  were 
consistent.  The  truth  was  obscurely  stated,  and  the  falsehood  plainly, 
and  they  dealt,  consequently,  on  the  hat;is  of  the  falsehood.  In  this 
condition  of  affairs,  I  think  it  would  be  a  manifest  misappHcation  of 
legal  principles  to  say  that  the  truth  bars  the  estoppel.  The  true  rule 
,upon  this  subject  I  take  to  be  this:  Whether  the  appearance  of  the 
truth  on  the  face  of  the  instrument  will  defeat  an  estoppel  or  not,  must 
altogether  depend  upon  the  fact  whether  it  is  so  expressed  that  it  can 
be  readily  seen  and  understood  by  the  person  who  ought  to  be  influ- 
enced by  it,  or  in  manner  so  technical  or  obscure  that,  although  it  must 
be  admitted  it  appears  in  the  instrument,  yet  it  is  certain  it  was  not 
seen  nor  understood  by  the  person  who  should  have  been  influenced 
by  it,  but  that  he  dealt  with  the  party  sought  to  be  estopped  as  though 
the  words  on  which  the  estoppel  is  founded  expressed  the  whole  truth. 

The  great  purpose,  lying  at  the  foundation  of  the  law  of  estoppeL  is 
to  prevent  fraud,  either  actual  or  legal.  Estoppels  are  to  be  used  as 
shields,  not  as  swords.  A  simple  reading  of  the  recitals  of  this  deed 
can  leave  no  doubt  on  the  mind  of  any  person  as  to  the  basis  on  which 
the  parties  dealt.  They  were  dealing  with  the  fee.  Thomas  intended 
to  grant_t<;>  Mary  Ann  the  fee  simple  absolute,  and  she  expected  to  get 
it  That  was  the  estate  for  which  she  paid  her  money,  and  that  was 
the  estate  Thomas  intended  to  convey  to  her.  Now,  if  Thomas  were 
here  insisting  that  inasmuch  as  his  deed  told  both  the  truth  and  a  false- 
hood, it  was  equitable  and  just  that  he  should  be  allowed  to  recover 
the  lands  in  dispute,  in  spite  of  the  fact  that  he  had  received  full  com- 
pensation for  them  many  years  ago,  his  conduct,  according  to  my 
notions  of  legal  ethics,  would  constitute  a  fraud  of  the  most  offensive 
character.  Thomas's  donee,  in  legal  principle  if  not  in  mnraly;,  stands 
just  exactly  where  Thomas  would,  if  he.  instead  of  the  defendant, 
were  now  asking  for  a  dissolution  of  this  injunction.     My  conclusion 


Ch.  7)  ESTOPPEL  BY  DEED  789 

is  that  it  should  be  adjudged  that  the  defendant  is  estopped  by  the     pj-/^'  ^^^ 


M 


deed,oXX834. 

But  another  ground  for  equitable  relief  remains  to  be  considered. 
The  complainant  contends  that,  even  if  it  be  admitted  that  Thomas  had 
no  interest  in  the  lands,  at  the  date  of  his  conveyance,  upon  which  a 
deed  of  bargain  and  sale  could  operate,  by  way  of  estoppel  or  other- 
wise, still,  inasmuch  as  it  distinctly  appears  on  the  face  of  his  deed 
that  it  was  intended  to  convey  any  future  interest  which  he  might  ac- 
quire, and  was  not  intended  to  be  limited  to  the  interest  which  he 
then  had,  equity  will  enforce  the  deed  as  an  executory  agreement  to 
convey  the  subsequently-acquired  interest.  This  contention  is  founded, 
on  the  most  obvious  principles  of  justice,  and  is  supported  bv  verv  high 
authority]  The  adjudications  supporting  it  will  be  found  collected  in 
2  Smith's  L.  C.  641;  2  Story's  Eq.  Jur.  §  1040  c;  and  2  Spence's 
Eq.  Jur.  852.  Chief  Justice  Tilghman,  in  McWilliams  v.  Nisly,  2  Serg. 
&  R.  (Pa.)  509,  515  (7  Am.  Dec.  654),  said:  "Equity  will  enforce  a 
covenant  to  convey  an  estate  whenever  it  shall  be  acquired  by  tne 
covenantor,  and  the  case  is  not  the  less  strong  where  there  is  an  abso- 
lute conveyance." 

This  ground  of  relief  is,  unquestionably^ a  matter  of  jvhjch  a  court 
of  equity  only  can  take  cognizance.  While  I  am  decided  in  my  opin- 
ion that  the  deed  of  Thomas  to  Mary  Ann  contains  matter  which  cre- 
ates an  estoppel  against  Thomas  and  all  who  may  claim  under  him 
as  heirs  or  devisees",  still,  so  far  as  I  am  aware,  the  question  whether 
a  deed  in  this  form  will  create  an  estoppel  or  not  is,  as  a  matter  of 
law,  undecided  in  this  state.  To  compel  the  complainant^  therefore, 
to  litigate  the  question  of  estoppel  in  the  court  where  the  action  of 
ejectment  is  pending,  is  to  send  her  to  a  tribunal  whidi  it  is  clear  is 
incompetent  to  give  her  one  measure  of  relief  to  which  she  seems  en- 
titled. If  the  injunction  should  be  dissolved,  and  it  should  then  turn 
outuiat  the  court  in  which  the  action  of  ejectment  is  pending  should 
be  of  opinion  that  the  deed  created  no  estoppel,  the  complainant  would 
be_  compelled  either  to  yield  possession  of  the  land,  or  return  here  in 
order  that  her  additional  claim  to  relief  might  bp  HptprminpH. 

For  these  reasons  i  think  the  defendant's  motion  should  be  denied.^ 

2  A.,  in  possession  of  lands  as  devisee  of  his  father,  who  in  his  lifetime  was 
equitable  owner  thereof,  executed  a  mortgage  of  those  lands  to  B.,  reciting  ^-      .  ,-. 

therein  that  he,  A„  was  legally  or  equitably  entitled  to  the  premises,  and  also  ^ ^  ^*.  ^ ^  jLa. 
covenanting  that  he  was  lawfully  or  equitably  seised  thereof.     Later  A.  ac-'^^V"^ 
quirefl  the  legal  estate  and  mortgaged  the  premises  to  C,  who  took  without  no-         U         'TT^ 
tice  of  B.'s  rights.     In  ejectment  by  A.  against  C.  it  was  contended  on  behalf     ^Sr^-^^*^'  '** 
of  A.  ttiat  C.  was  estopped  to  set  up  the  legal  estate.     It  was  held  that  there       f) 
was  no  such  estoppel.    Right  d.  Jefferys  v.  Bucknell,  2  B.  &  Ad.  278  (1831). 


'|:rsr^-^"'"™-f"i*^ 


-t 


790 


DERIVATIVE   TITLES 


(Part  2 


u^;(^' 


AYER  V.  PHILADELPHIA  &  B.  FACE  BRICK  CO. 

(Supreme  Judicial  Court  of  Massachusetts.  1S92,  1893.     157  Mass.  57,  31  N.  E. 
717,  159  Mass.  84,  34  N.  E.  177.) 

This  is  a  writ  of  entryto  foreclose  a  mortgagee.  The  case  on  the 
agreed  facts,  so  far^TTt  needs  to  be  stated,  is  this.  One  Waterman 
made  a  first_mortgage,  and  later  a  second  Jnortgags.  'The  hrst  was 
foreclosed  and  the  land  subsequently  was  reconveyed  to  him.  Thenjhe 
holder  of  the  second  mortga^ejcnr'^'P}'^'^  ^^  ^  thirri  pjex^^^n^  \vho_ con- 
v^yed  to_thf  dfHrrand,anJ--  The  tenant  is  a  grantee  under  Water- 
man.    *     *     *  V'         (j>Cf^  »f  U/^t«l»  i*AM^  fcKAnTJ 

In  the  granting  part  m  this  deed,  the  land  is  stated  to  be  *  conveyed 
subj ect  to"  a  certain  right  of  drainage,  a  certain  easement,  "and  the 
mortgage  hereinafter  named,."  The  covenants  are  as  follows :  "And 
I,  the  said  grantor,  for  myself  and  my  heirs,  executors,  and  adminis- 
trators, do  covenant  with  the  said  g^rantees  and  their  heirs  and  assigns, 
that  I  am  lawfully  seised  in  fee  simple  of  the  aforegranted  premises ;  G^ 
*:hat  tliey  are  free  from  all  encumbrances.  e>^ce|Tl^  certain  mortgage*' 
(iven  by  me  to  the  Boston  Five  Cents  Savings  Bank,  dated  March  1, 
1872,  to  secure  the  sum  of  forty  thousand  dollars,  the  rip^ht  nf  drainag-e 
and  the  easement  aforesaid ;  that  I  have  good  right  to  sell  and  convey 
the  same  to  the  said  grantees,"  and  their  heirs  and  assigns  torever,^s 
aforesaid :  and  that  I  will,  and  mv  heirs,  executors,  and  administrators 
shall,  warrant  and  defend  the  same  to  the  said  grantees ^and  their  heirs 
and  assigns  forever,  against  tlie  lawtul  claims  and  demands  of  all  pgr- 
gons,  except  the  rip"ht  nf  (jj-^nacrp  anH  tlnp^easement  aforesaid-"    *    *    * 

Holmes,  J.^  When  this  case  was  before  us  the  first  time,  157  Mass. 
5'7,  31  N.  E.  717,  it  was  assumed  by  the  tenant  that  the  orily  gnestjon 
wasjvhether  the  covenant  nf  warranty  in  the  serond  mor|:gage  should 
be  construed  as  warranting  againc;!  thp  fi^^g^•  mrirfgrogA-^:  Q]\^o  attempt 


was  made  to  deny  that,  if  it  was  so  construed,  the  title  afterwards  ac- 
quired by  the  mortgagor  would  enure  to  the  benefit  of  the  second  mort- 
gagee under  the  established  American  doctrine^  The  tenant  now  de- 
sires to  reopen  the  agreed  facts  for  the  purpo^of  showing  that  after 
a  breach  of  the  covenant  in  the  second  mortgage,  and  before  he  re- 
purchased theland,  the  mortgagor  went  into  bankruptcy  and  got  his 
discharge.  TTTe  judge  below  ruled  that  the  discharge  was  immaterial, 
and  for  that  reason  alone  declined  to  reopen  the  agreed  statement,  and 
the  case  comes  before  us  upon  an  exception  to  that  ruling. 

The  tenant's  counsel  frankly  avow  their  own  opinion  that  the  dis- 


3  The  statement  of  facts  is  talcen  from  the  opiuion  reported  in  157  Mass.  57, 
31  N.  E.  717. 
/^t  Wiis  held  fh.q«;  fhp  noveoant  of  >\nrrnn<-Y  1"  tha. coonprj  mort£!;ng;e  shoi^lfl 
bV^coiistniejl.  Welbon  v.  Welbon,  109  Mich.  356,  67  N.  W.  33.S  (1896) ;  Smith 
V.  GauL),  jy  .>^.  D.  ,337,  123  N.  W.  827  (1909).  ace.  Dunn  v.  Dunn,  3  Colo.  512 
(1877)  semble;    Briclcer  v.  Bricker,  11  Ohio  St.  240  (1860),  contra. 


Ch.  7)  ESTOPPEL   BY   DEED  791 

charge  in  bankruptcy  makes  nn  rlifFerencf'.  But  they  say  that  the  inur- 
ing of  an  after  acquired  title  by  virtue  of  a  covenant  of  warranty  must 
be  due  either  to  a  representation  or  to  a  promise  contained  m  the  cov- 
enant, and  that  if  it  is  due  to  the  former,  which  they  deem  the  co rr ect 
doctrine,  then  they  are  entitled  to  judgment  on  the  agreed  statement  of 
facts  as  it  stands,  on  the  ground  that  there  can  be  no  estoppel  by  an 
i nstrument  when  the  truth  appears  on  the  face  of  it,  and  that  m  thi s 
case  the  deed  showed  that  the  grantor  was  conveying  land  subject  to  ^ 
mortgage.  If,  however,  contrary  to  their  opinion,  the  title  inures  by 
reason  of  the  promise  in  the  covenant,  or  to  prevent  bircuity  of  action, 
then  they  say  the  provision  is  discharged  by  the  discharge  in  bank- 
ruptcy. 

However  anomalous  what  we  have  called  the  American  doctrine  may 
be,  as  argued  by  Mr.  Rawle  and  others  (Rawle  on  Covenants  (5th  Ed.) 
§  247  et  seq.),  it  is  settled  in  this  State  as  well  as  elsewhere.  It  is  set- 
tled also  that  a  discharge  in  bankruptcy  has  no  effect  on  this  oper^tjon 
of  the  covenant  of  warranty  in  an  ordinary  deed  where  the  warranty 
is  coextensive  with  the  grant. .  Bush  v.  Person,  18  How.  82,  15  L.  Ed. 
273 ;  Russ  v.  Alpaugh,  118  Mass.  369,  376,  19  Am.  Rep.  464.  Gibbs 
V.  Thayer,  6  Cush.  30;  Cole  v.  Raymond,  9  Gray,  217;  Rawle  on  Cove- 
nants, (5th  Ed.)  §  251.  It  would  be  to  introduce  further  technicaHty 
into  an  artificial  doctrine  if  a  different  rule  should  be  appHed  where 
the  conveyance  is  of  land  subject  to  a  mortgage  against  which  the 
grantor  covenants  to  warrant  and  defend.  No  reason  has  been  offered 
for  such  a  distinction,  nor  do  we  perceive  any. 

But  it  is  said  that  the  operation  of  the  covenant  must  be  rested  on 
some  general  principle,  and  cannot  be  left  to  stand  simply  as  an  un- 
justified peculiarity  of  a  particular  transaction  without  analogies  else- 
where in  the  law,  and  that  this  g-enerp]  prinriplp  ran  he  fnund  nnlyJn 
the  doctrine  of  estoppel  by  representation^  if  it  is  held,  as  the  cases 
cited  and  many  others  show,  that  the  estoppel  does  not  depend  on  per- 
sonal liability  for  damages.    Rawle  on  Covenants,  (5th  Ed.)  §  251. 

If  the  American  rule  is  an  anomaly,  it  gains  no  strength  by  being  re- 
ferred to  a  principle  which  does  not  justify  it  in  fact  and  by  sound 
reasoning.  The  title  may  be  said  to  enure  by  wav  of  estoppel  when  ex- 
plaining the  reason  why  a  discharge  in  bankruptcy  does  not  affect  this 
operation  of  the  warranty ;  but  if  so,  the  existence  of  the  estoppel  does 
not  rest  on  the  prevention  of  fraud  or  on  the  fact  of  a  representation 
actually  believed  to  be  true.  It  is  a  technical  effect  of  a  technical  repre- 
sentation, the  extent  of  which  is  determined  by  the  scope  of  the  words 
devoted  to  making  it.  A  subsequent  title  would  innre  to  the  grantee 
when  the  grant  was  of  an  unencumbered  fee  although  the  parties  agreed 
by  parol  that  there  was  a  mortgage  outstandinof ;  Chamberlain  v.  Meed- 
er,  16  N.  H.  381,  384;  see  Jenkins  v.  Collard,  145  U.  S.  546,  5.60,  12 
Sup.  Ct.  868,  36  L.  Ed.  812,  and  this  shows  that  tlie  estoppel  i.?  deter- 
mined by  the  scope  of  the  conventional  assertion,  not  by  any  question 
of  fraud  or  of  actual  belief. 


792  DERIVATIVE  TITLES  (Part  2 

But  the  scope  of  the  conventional  assertion  is  determined  by  the 
scope  of  the  warranty  which  contains  it.  Usually  the  warranty  is  of 
what  is  granted,  and  therefore  the  scope  of  it  is  determined  by  the 
scope  of  the  description.  But  this  is  not  necessarily  so ;  and  w^hen  the 
warranty  says  that  the  grantor  is_to  be  taken  as  assuring^  vou  that  he 
owns  and  will  defend  you  in  the  unencumbereH  fff,  '^t  r\np<::  nnt-  n^Her 
that  by  the  same  deed  he  avows  the  assertion  not  to  be  the  fact  The 
warranty  is  mtended  to  fix  the  extent  of  responsibility  assumed,  and 
by  that  the  grantor  makes  himself  answerable  for  the  fact  being  true. 
In  short,  if  a  man  by  a  deed  says,  I  hereby  estop  myselfto  deny  a_fact, 
it  does  not  matter  that  he  recites  as  a  preliminary  that  the  fact  is  not 
true._  The  difference  between  a  warranty  and  an  ordinary  statement 
in  a  deed  is,  that  the  operation  and  effect  of  the  latter  depends  on  the 
whole  context  of  the  deed,  whereas  the  warranty  is  put  in  f or  jhe  ex- 
press  purpose  of  estopping  the  grantor  to  the  extent  of  jtsj^ds.  .,  Tlie 
reason  "why  the  estoppel  should  operate,  is.  that  such  was  the  obvious 
intentpn  ot  the  parties."  Blake  v.  Tucker,  12  Vt.  39,  45. 
"TTa  general  covenant  of  warranty  following  a  conveyance  of  oob'' 
the  grantor's  right,  title,  and  mterest  were  made  in  such  a  form  that 
it  was  construed  as  more  extensive  than  the  conveyance,  there  would 
be  an  estoppel  coextensive  yyith  the  covenant.  See  Blanchard  v. 
Brooks,  12  Pick.  47,  66,  67 ;  Bigelow,  Estoppel  (5th  Ed.)  403.  So  in 
the  case  of  a  deed  by  an  heir  presumptive  of  his  expectancy  with  a  cD.:Ke- 
nant  of^j^sUHant;^.  In  this  case,  of  course,  there  is  no  pretence  that  th e 
grantor  has  a  title  coextensive  with  his  warranty.  Trull  v.  Eastment, 
3  Mete.  121,  124,  37  Am.  Dec.  126.  In  Lincoln  v.  Emerson,  108  Mass. 
87,  a  first  mortgage  was  mentioned  in  the  covenant  against  encumbranc- 
es in  a  second  mortgage,  but  was  not  excepted  from  the  covenant  of 
warranty.  The  title  of  the  mortgagor  under  a  foreclosure  of  the  first 
mortgage  was  held  to  inure  to  an  assignee  of  the  second  mortgage. 
Here  the  deed  disclosed  the  truth,  and  for  the  purposes  of  the  tenant ' s 
argument  it  cannot  matter  what  part  of  the  deed  discloses  the  truth, 
unless  it  should  be  suggested  that  a  covenant  of  warranty  cannot  be 
rnade  more  extensive  than  the  grant,  which  was  held  not  to  be  ttie  faw 
in  our  former  decision^  See  also  Calvert  v,  Sebright,  15  Beav.  156, 
160.^ 

The  question  jemains  whether  thetenant  stands  better  as  a  purchaser 
whhout  actud''notice,  assuming  tKa't~Ee"fiad  not  actual  notice  of  !llae 
second  mortgage. 

6  See  Dniry  v.  Holden,  121  111.  1.30,  1.3  N,  E.  547  (1SS7),  where  immediately 
following?  the  description  of  the  lots  conveyed  there  was  the  following  clause : 
"Suhject.tn  thp  f<7)1niwiT^<^  incumhrances  on  said  dpsfriher^  prpm^'sps:  One  for 
the  principal  sum  of  $19,606,  and  the  other  for  the  principal  sum  of  $6,500." 
'J'he  deed  c-ontained  full  covenants  of  warr'onty  and  against  incumbrances,. there 
• ' einsr  nn  pxp^ptions  wTintever  to  the  r^jvpunntp  ThP  nnnvt  ntn  Til  'iiWH^'M 
E.  54S)  said:  "It  is  said  the  deed  *  *  *  contained  lull  covenants  of  war- 
ranty, to  which  there  was  no  exc-eption :  that  thereby  Drury's  grantor  covenant- 
ed that  he  would  warrant  and  defend  the  lots  conveyed  against  the  holders  of 
all  incumbrances.    The  covenants  extended  only  to  what  was  conveyed,  and 


Ch.  7)  ESTOPPEL  BY  DEED  793 

"It  has  been  the  settled  law  of  this  Commonwealth  for  nearly  forty 
years,  that,  under  a  deed  with  covenants  of  warranty  from  one  capable 
o f  executing  it,  a  title  afterwards  acquired  by  the  grantor  mures^y 
way  of  estoppel  to  the  grantee,  notonly  as  against  the  grantor,  but 
also  as  against  one  holding  by  descent  or  grant  from  him  after  acquir- 
ing the  new  title.  Somes  v.  Skinner,  3  Pick.  52.  White  v.  Patten,  24 
Pick.  324.  Russ  V.  Alpaugh,  118  Mass.  369,  376,  19  Am.  Rep.  464. 
We  are  aware  that  this  rule,  especially  as'  applied  to  subsequent  gran- 
tees, while  followed  in  some  States,  has  been  criticised  in  others.  See 
Rawle  on  Covenants  (4th  Ed.)  427  et  seq.  But  it  has  been  too  long 
established  and  acted  on  in  Massachusetts  to  be  changed,  except  by  leg- 
islation." Knight  V.  Thayer,  125  Mass.  25,  27.  See  Powers  v.  Patten, 
71  Me.  583,  587,  589;  McCusker  v.  McEvey,  9  R.  I.  528,  11  Am.  Rep. 
295 ;   Tefft  v.  Munson,  57  N.  Y.  97. 

It  is  urged  for  the  tenant  that  this  rule  should  not  be  extended.  _But 
if  it  is  a  bad  rule,  that  is  no  reason  for  makmg  a  bad  exception  to  it. 
As  the  title  would  have  inured  as  against  a  subsequent  purchaser  from 
the  mortgagor  had  his  deed  made  no  mention  of  the  mortgage,  and 
as  by  our  decision  his  covenant  of  warranty  operates  by  way  of  estop- 
pel notwithstanding  the  mention  of  the  mortgage,  no  intelligible  reason 
can  be  stated  why  the  estoppel  should  bind  a  purchaser  without  actual 
notice  in  the  former  case,  and  not  bind  him  in  the  latter. 

Upon  the  whole  case,  we  are  of  opinion  that  the  demandant  is  enti- 
tled to  judgment.  Our  conclusion  is  m  accord  with  the  decision  in  a 
very  similar  case  in  Minnesota.  Sandwich  Manuf.  Co.  v.  Zellmer,  48 
Minn.  408,  51  N.  W.  379.  ^ 

Excep.cns  overrule.  _^^^,.^^ 

DOE  ex  dem.  CHRISTMAS  v.  OLIVER. 

(Court  of  King's  Bench,  1829.     10  B.  &  C.  ISl.) 

BaylEy,  J.*  This  case  depended  upon  the  effect  of  a  fine  levied  by 
a  contingent  remainder-man  'in  f eei  "Knn  Mary  the  wife  of  Joseph 
Brooks  Stephenson  was  entitled  to  an  estate  m  fee  upon  the  contin- 
gency of  her  surviving  Christian,  the  widow  of  Theophilus  Holmes ; 
and  she  and  lier  husband  conveyed  the  premises  to  Thomas  Chandl ess 
for  ninety-nine  years,  and  levied  a  fine  to  support  that  conveyance. 
Christian,  the  widow,  died  leaving  Mrs.  Stephenson  living,  so  tJiat 
the  contingencyupon  which  the  limitation  of  the  fee  to  Mrs.  Stephen- 
son depended,  happened,  and  this  ejectment  was  brought  by  the  as- 
signees  of  the  executors  of  Thomas  Chandless,  in  whom  the  term  for 

that  was  not  the  lots  absolutely,  but  the  lots  subject  to  the  incumbrance.  The 
real  covenant  wag  .tjbat,  other^vise  than  as  sublect  to  the  incumbrances  named, 
the  lots  were  free  from  all  Tnoumbrances.  anr)  1-)int-.  the  grantor  wnnl^l  -^^nr- 
rant  and  defend  the"  title."  See,  also,  Koch  v.  Hustis,  113  Wis.  604,  89  i^.  W. 
S38  (1902).     "■  "• 

'■  The  statement  of  facts  is  omitted. 


794  DERIVATIVE  TITLES  (Part  2 

ninety-nine  years  was  vested.  It  was  conceded  upon  the  argument 
that  the  fine  was  binding  upon  Mr.  and  Mrs.  Stephenson,  and  all  who 
claimed  under  them  by  estoppel ;  but  it  was  insisted  that  such  fine  op- 
erated by  way  of  estoppel  only;  that  it  therefore  only  bound  parties 
and  privies,  not  strangers ;  tliat  the  defendan^t.  not  being  proved  to 
come  in  under  Mr.  and  Airs.  Stephenson,  was  to  be  deemed  not  a 
privy,  but  a  stranger ;  and  that  as  to  him,  the  estate  was  to  be  consid- 
ered as  still  remaining  in  Mr.  and  Mrs.  Stephenson.  To  support  this 
position,  the  defendant  relied  upon  the  latter  part  of  the  judgment  de- 
livered by  me  in  Doe  dem.  Brune  v.  Martyn,  8  B.  &  C.  497;  and  that 
part  of  the  judgment  certainly  countenances  the  defendant's  argument 
here.  The  reasoning,  however,  in  that  case,  is  founded  upon  the  sup- 
position that  a  fine  by  a  contingent  remainderman  operates  by  estoppel, 
and  by  estoppel  onlv ;  its  operation  by  estoppel,  which  is  indisputable, 
was  sufficient  for  the  purpose  of  that  decision,  whether  it  operated  by 
estoppel  only,  or  whether  it  had  a  further  operation,  was  quite  imma- 
terial in  that  case ;  and  the  point  did  not  there  require  that  investigation, 
which  the  discussion  in  this  case  has  made  necessar3^  We  have,  there- 
fore, given  the  point  the  further  consideration  it  required,  and  are  satis- 
fied upon  the  authorities,  that  a  fine  by  a  contingent  remainder-man, 
though  it  operates  bv  estoppel,  does  not  operate  by  estoppel  only,  but 
that  it  has  an  ulterior  operation  when  the  contingency  happens^;  thatJ:he 
estate  which  then  becomes  vested  feeds  the  estoppel;  and  that  the  fine 
operates  uPon  that  estate,  as  though  that  estate  had  been  vested  injjie 
cognizors  at  the  time  the  fine  was  levied. 

In  Rawlins's  Case,  4  Co.  52,  Cartwright  demised  land,  not  his,  to 
Weston  for  six  years ;  Rawlins,  who  owned  the  land,  demised  it  to 
Cartwright  for  twenty-one  years;  and  Cartwright  re-demised  it  to 
Rawlins  for  ten ;  and  it  was  resolved  that  the  lease  by  Cartwright, 
when  he  had  nothing  in  the  land,  was  good  against  him  by  conclusion ; 
and  when  Rawlins  re-demised  to  him,  then  was  his  interest  bound  by 
the  conclusion ;  and  when  Cartwright  re-demised  to  RawHns,  now  was 
Rawlins  concluded  also.  Rawlins,  indeed,  is  bound  as  priv}'-,  because 
he  comes  in  under  Cartwright;  but  the  purpose  for  which  I  cite  this 
case  is,  to  shew  that  as  soon  as  Cartwright  gets  the  land,  his  interest 
in  it  is  bound.  In  Weak  v.  Lower,  Poll.  54,  (A.  D.  1672,)  Thomas,  a 
contingent  remainder-man  in  fee,  leased  to  Grills  for  500  years,  and 
levied  a  fine  to  Grills  for  500  years,  and  died.  The  contingency  hap- 
pened, and  the  remainder  vested  in  the  heir  of  Thomas,  and  whether 
this  lease  was  good  against  the  heir  of  Thomas  was  the  question.  It 
was  debated  before  Hale,  C.  J.,  and  his  opinion  was,  that  the  fine  did 
operate  at  first  by  conclusion,  and  passed  no  interest,  but  bound  the 
heir  of  Thomas ;  that  the  estate  which  came  to  the  heir  when  the  con- 
tingency happened  fed  the  estoppel ;  and  then  the  estate  bv  estoppel 
became  an  estate  in  interest,  and  of  the  same  effect  as  if  the  contin- 
gencv  had_happened  before  the  fine  was  levied:  and  he  cited  Rawlins's 
Case,  4  Coke,  53,  in  which  it  was  held,  that  if  a  man  leased  land  in 


Ch.  7)  ESTOPPEL   BY   DEED  .       795 

which  he  had  nothing,  and  afterwards  bought  the  land,  such  lease 
would  be  good  against  him  by  conclusion,  but  nothing  in  interest  till 
he  bought  the  land ;  but  that  as  soon  as  he  bought  the  land,  it  would 
become  a  lease  in  interest.  The  case  was  again  argued  before  the  Lord 
Chancellor,  Lord  C.  J.  Hale,  Wild,  Ellis,  and  Windham,  justices,  and 
they  all  agreed  that  the  fine  at  first  enured  by  estoppel ;  but  that  when 
the  remainder  came  to  the  conusor's  heir,  he  should  claim  in  nature 
of  a  descent,  and  therefore  should  be  bound  by  the  estoppel ;  and  th.en 
the  estoppel  was  turned  into  an  interest,  and  the  cognizee  had  then  an 
estate  in  the  land.  In  Trevivan  v.  Lawrence,  6  Mod.  258,  Ld.  Raym. 
1051,  Lord  Holt  cites  39  Ass.  18,  and  speaks  of  an  estoppel  as  running 
upon  the  land,  and  altering  the  interest  of  it, — as  creating  an  interest 
in  or  working  upon  the  estate  of  the  land,  and  as  running  with  the  land 
to  whoever  takes  it.  In  Vick  v.  Edwards,  3  P.  Wms.  372  (1735),  Lord 
Talbot  must  have  considered  a  fine  by  a  contingent  remainder-man  as 
having  the  double  operation  of  estopping  the  conusors  till  the  contin-  .  ^ 
gency  happened,  and  then  of  passing  the  estate.  In  that  case,  lands  I  ^■"^^-tf-Y^ ^ 
were  devised  to  A.  and  B.  and  the  survivor  of  them,  aud  the  heirs  of 
such  survivor,  in  trust  to  sell :  the  master  reported  that  they  could  not 
make  a  good  title,  because  the  fee  would  vest  in  neither  till  one  died. 
On  exceptions  to  the  master's  report.  Lord  Talbot  held,  that  a  fine_by 
the  trustees  would  pass  a  good  title  to  the  purchaser  by  estoppel ;  for 
though  the  fee  were  in  abeyance,  it  was  certain  one  of  the  two  trustees 
must  be  the  survivor,  and  entitled  to  the  future  interest ;  consequently, 
his  heirs  claiming  under  him  would  be  estopped  by  reason  of  the  fine 
of  the  ancestor  to  say,  quod  partes  finis  nihil  habuerunt,  though  he  that 
levied  the  fine  had  at  the  time  no  right  or  title  to  the  contingent  fee. 
And  the  next  day  he  cited  Weale  v.  Lower.  Now,  whether  Lord  Tal- 
bot were  right  in  treating  the  fee  as  in  abeyance,  and  the  limitation  to 
the  survivor  and  his  heirs  as  a  contingent  remainder  or  not,  it  is  evi- 
dent he  did  so  consider  them ;  and  he  must  have  had  the  impressjon 
that  the  fine  would  have  operated  not  by  estoppel  onlv.  but  by  wav  of 
pgissing  the  estate  to  the  purchaser,  because,  unless  it  had  the  latter 
operation  as  well  as  the  former,  it  could  not  pass  a  good  title  to  the 
purchaser. 

In  Fearne,  c.  6,  §  5  (Edit.  1820)  p.  365,  it  is  said,  "\^e  are  to  remem- 
ber, however,  that  a  contin p-fiit  ^^maiader  may,  before  it  vests,  be 
passed  by  fine  by  way  of  estoppel,  so  as  to  bind  the  interest  which  shall 
afterwards  accrue,  by  the  contingency:"  and  after  stating  the  facts  in 
Weale  v.  Lower,  he  says,  it  was  agreed  that  the  contingent  remainder 
descended  to  the  conusor's  heir;  and  though  the  fine  operated  at  first 
by  conclusion,  and  passed  no  interest,  yet  the  estoppel  bound  the  heir : 
and  that  upon  the  contingency,  the  estate  by  estoppel  became  an  estate 
in  interest,  of  the  same  effect  as  if  the  contingency  had  happened  before 
the  fine  was  levied. 

Upon  these  authorities  we  are  of  opinion  that  the  fine  in  this  case 
had  a  double  operation, — that  it  bound  Mr.  and  Mrs.  Stephenson  b^ 


796    .  *      DERIVATIVE  TITLES  (Part  2 

estoppel  or  conclusion  so  long  as  the  contingency  continued ;  but  that 
Avhen  the  contingency  happened,  the  estate  which  devolved  upon  Mrs. 
Stephenson  fed  the  estoppel;  the  estate  created  by  the  fine,  by  way  of 
estoppel,  ceased  to  be  an  estate  by  estoppel  only,  and  became  an  interest, 
and  gave  Mr.  Chandless.  and  those  having  right  under  him,  exactly 
what  he  would  have  had  had  the  contingency  happened  before  the  fine 
was  levied, 

Postea  to  the  plaintiff.^ 


PERKINS  V.  COLEMAN. 

(Court  of  Appeals  of  Kentucky,  1S90.     90  Ky,  611,  14  S.  W.  640.) 

Bennett,  J.,  delivered  the  opinion  of  the  court. 
N.  G.  Terry  owned  an  undivided  interest  in  the  land  in  controversy, 
and  conveyed  tlie  whole  oT  \\^^q_Y{.oxz.z^  Dunham  by  deed  of  general 
warranty.     Thereafter  Terry  inherited  tliat  part  of  the  land  that  he 
Xi\4^*^^^  did  not  own,  and  this  action  of  ejectment  is  brought  by  Terrv's  heirs 

\^.^iji/\y^  to_recoverJh6  possession  ot  that  par^f_diejand  thus  inherited  frorn 
the  appelTeeT  He  resists  the  righFoTlhe  appellants  to  recover  the  said 
land  upon  the  ground  that  die  title  that  Terry  inherited  was  trans- 
ferred to  his  vendee  by  ejtoppel.    The  appellants  contend  that  the  doc- 

7  "By  the  commpa  law  there  were  only  two  classes  of  conyey;ances  which 
were  held  to  operate  upon  the  after-acqnired'Title-^-those  Sy^teoffmenfTIBy^ne, 
or  by  common  re(i2i;ery,  and  tins  from  their  solemnity  and  publicity,  and  ttiose 
by  Indenture  of  lease  from  the  implied  covenants  arisins;  upon  such  inden- 
ttrrPST'  dark  v.  balver,  14  Cal.  612,  627,  76  Am.  Dec.  449  (1S60),  per  Field, 
C.  J.     See,  also,  Burtners  v.  Keran,  i>4  Grat.  (A^a.)  42  (1873). 

In  Sturgeon  v.  Wingfield,  15  M.  &  W.  224  (1846),  where  the  lessee  sued  the 
assignee  of  the  lessor  for  breach  of  covenant  made  by  the  lessor,  the  defenses 
were  (1)  that  there  had  been  no  demise  to  the  plaintiff,  and  (2)  that  no  rever- 
sion had  come  to  the  defendant.  The  lessor  at  the  time  of  making  the  lease 
had  no  interest  in  the  premises,  but  later  acquired  an  interest.  The  court,  by 
Parke,  B.,  said,  "On  the  first  issue,  the  verdict  clearly  must  be  entered  for  the 
plaintiff,  that  there  was  such  a  demise  to  him  as  is  stated  in  the  declaration. 
Then,  as  to  the  second  point,  all  the  reversion  of  Hogarth,  which  was  a  rever- 
sion by  estoppel.  pas.sed  from  him  to  the  defendant.  This  estoppel,  was  fed  by 
the  d(^mise  for  one  hundred  years  from  the  Broderer's  Company  to  Hogarth,  the 
lessor,  and  thereby  the  lease  from  him  to  the  plaintiff  became  good  in  point  of 
interest." 

What  would  be  the  result  where  from  the  face  of  the  lease  it  appears  that 
the  lessor  has  no  Interest? 

"A.,  lessee  for  life  of  B.,  makes  a  lease  for  years  by  deed  indented,  and  after 
purchases  the  reversion  in  fee;  B.  dies;  A.  shall  avoid  his  own  lease,  for  he 
may  confess  and  avoid  the  lease  which  too'^Tlfect  in  point  nf  interest  and  .de- 
termined  by  the  death  pf  B."     Co.  Litt.  47b. 

"Debt  for  rent  on  an  indenture  of  lease  for  forty  years.  The  defendant 
pleaded  that  a  year  before  the  plaintiff  made  a  lease  for  forty  years  to  A.,  vir- 
tute  cujus  A.  entered  and  was  possessed ;  and  that  thou-xh  the  defendant  did 
afterwards  enter,  yet  he  was  accountable  to  the  said  A.  On  demurrer  Carthew 
argued,  that  the  second  lease  was  void  for  the  fii-st  thirty-nine  yeai-s,  and  so 
was  the  reser\ation,  and  that  here  was  no  estoppel,  because  the  last  of  the  for- 
ty years  passed  by  the  lease."     See  Gilinan  v.  Hoare,  1  Salk.  275  (1673). 

A.,  lessee  for  five  years,  leases  to  B.  for  twenty-five  years,  and  later  acquires 
the  reversion  lU  Itjy.  VVhatrtf  any,  effect  does  such  acquisition  of  the  fee  have 
iig6h  B.'s  pbiJlUOuT  — '■ —   -~ — ^ ' 


Ch.  7)  ESTOPPEL  BY  DEED  797 

trine  of  estoppel  d£es  not  protect  strangers  to  the  transaction ;  but 
only  the  parties  an'd  privies  are  bound  thereby ;  and  as  the  appellee 
is  neither  party  nor  privy,  he  can  not  avail  himself  of  the  estoppel 
that  would  bar  the  appellants'  right  as  against  Dunham  or  his  privies. 
It  is  true  that  vyhere  the  estoppel  merely  affects  the  consciences  of 
the  parties,  and  not  the  title,  it;  does  nnf  nperate  on  strangers  to  the 
transaction ;  but  where  it  "works  an  interest  in  the  land"  conveyed, 
'Tt  runs  with  it.  and  is  a  title."  Where  it  clearly  appears  from  the 
writing  that  the  vendor  has  conveyed,  or  agrees  to  convey,  a  good  ^^^  Zt^/ 1  t 
and  sufficient  title,  and  not  merely  his  present  interest  in  the  land,  ^^^^J 
the  agreement  runs  with  the  land,  and  repeats  itself  every  day;    and  jTIa^.^^ 

if  the  vendor,  at  tlie  time  of  the  conveyance,  has  not  title  to  the  land,  X»A>tX  lS^^  A 
but  subsequently  acquires  the  title,  it,  "eo  instante."  inures  to  the  ben- 
efit of  die  vendee  and  his  privies.  In  other  words,  it  is  immediately 
transferred  by  the  law  of  estoppel  to  the  vendee  and  his  privies,  be- 
cause  by  the  contract,  which  daily  repeats  itself,  the  vendor's  title, 
whenever  acquired,  is  transferred  to  the  vendee  and  his  privies ;  con- 
sequently,  a  stranger  to  the  transaction,  in  an  action  of  ejectment  by 
the  vendor  against  him,  where  he  must  recover  upon  the  strength  of 
his  title^  and  not  upon  the  weakness  of  his  adversary,  may  show  that 
he  has  thus  parted  with  his  title. 
'^   The  judgment  is  affirmed. 

y^^^d^  

JORDAN  V.  CHAMBERS. 

(Supreme  Court  of  Pennsylvania,  1910.    226  Pa.  573,  75  Atl.  956,  134  Am.  St. 

Rep.  1081.) 

Ejectment  for  land  in  Jefferson  township.  Before  Kennedy,  P.  J. 
The  facts  are  stated  in  the  opinion  of  the  Supreme  Court.® 

Verdict  and  judgment  for  plaintiff.    Defendant  appealed. 

Brown,  J.  The  title  to  the  land  involved  in  this  ejectment  passed 
out  of  the  commonwealth  in  1817,  and  Mary  Robb  acquired  title  to  it 
by  deed  dated  September  15,  1832.  After  her  death  it  was  sold  in 
1837  by  her  administrator,  the  father  qfjhe  appellant,  under  an  order 
of  the  orphans'  court  for  tHe  payment  of  debts,  and  the  title  which  the 
appellant  claims,  passed  to  him  through  sundry  conveyances,  starting 
with  the  deed  from  Mary  Robb's  administrator  to  Hugh  Toner  and 
ending  with  that  of  the  sheriff  of  Allegheny  county  to  himself.    Though  ^  j/^  jt 

an  unbroken  chain  of  title  by  deed  was  shown  in  the  appellant,  the  ^^^^^"^^^^"^ 
p;roof  submitted  by  the  appellee,  whose  claim  to  title  by  adverse  pos-y/W#'»'»^**'  *• 
session  was  sustained  by  the  jury,  was  that  from  1837  to  1897,  a  period  jin^>>f24mi^  ^^ 
of  sixty  years,  possession  of  the  land  had  never  been  taken  by  the    lit  x^S^CA. 
grantee  of  Mary  Robb's  administrator  nor  by  any  subsequent  grantee 
claiming  under  Toner.  Q^ja^^JtZ.^*'  ^ 

«  Tlie  charge  to  the  jury  and  certain  requests  are  omitted.  .    A 


U 


798  DERIVATIVE  TITLES  (Part  2 

The  adverse  possession  upon  which  tlie  appellee  relied  and  recovered 
AjLm^  ^L*t^V  started  in  1865.  In  that  year — twenty-seven  years  after  the  sale  by 
^jA  Mary  Robb's  administrator— Jane  Robb,  the  widow  of  Oliver  Robb, 

/I  '^      *   Ci^ya  son  of  Mary  Robb,  \vas  in  possession  of  the  farm,  living  on  it  and 
-L  (^JiA^*'*^         claiming  it  as  her  own.    There  was  no  title,  in  her  out  of  Mary  Robb. 
^     "      By  her  last  will  and  testament,  admitted  to  probate  October  12,  1869, 
Jane  Robb  devised  the  farm  to  her  son  Robert.    On  August  16,  1870, 
he  executed  &  general  warranty  deed  for  tlie  coal  underlying  the  prop- 
erty to  Thomas  J.  Keenan,  Malcolm  Hay  and  Robert  Woods.     In 
1874  his  interest  in  tlie  farm,  excepting  the  coal,  was  sold  at  sheriff's 
^rr"'  sale,  and,  by  various  conveyances,  it  finally  became  vested  in  Herman 

l^^*^^^*^  ^  liandel,  to  whom  Thomas  J-.  Keenan  executed  a  deed  for  the  qne- 
third  interest  in  the  coal  which  Robert  Robb  had  undertaken  to  convey 
to  him  in  1870.  Upon  the  death  of  Herman  Handel  the  property 
passed  to  the  appellee  in  1897,  under  proceedings  in  partition  in  the 
orphans'  court  ot  Allegheny  county.  Under  instructions  free  from 
error  as  to  the  measure  of  proof  required  from  the  appellee  to  sustain 
I  /)^^^^  title  claimed  to  have  been  acquired  by  her  by  adverse  possession, 

j)^  jl^^iA^-^ML  the  jury,  with  ample  evidence  before  them,  found  her  title  to  be  good. 
I    '^^L  It  IS  most  earnestly  contended  that,  as  tlie  title  to  two-thirds  of  the 

^  coal  is  still  outstanding  in  Malcolm  Hay  and  Robert  Woods,  or  their 

•i(f'^^^^\^ ^y\  representatives,  under  the  deed  of  1870  from  Robert  Robb,  a  general 
^^^♦"lil*^  I  verdict  in  favor  of  the  plaintiff  for  tlie  land,  including  the  coal,  ought 
"'T^/«#**'*^  /  not  to  be  sustained.  While  at  first  blush  this  may  seem  plausible,  it  is 
clear,  upon  reflection,  that  it  cannot  avail  the  appellant.  When  Robert 
Robb  conveyed  the  coal  in  1870  he  had  no  interest  in  it  nor  in  the  sur- 
face above  itT~  In  lUbb — tive  years  before — Jane  Robb,  his  mother, 
became  the  adverse  occupant  of  the  property,  and  for  five  years  after 
her  death  he  continued  the  adverse  possession  as  her  devisee,  but_dur: 
ing  those  ten  years  neither""she  nor  he  acquired  any  right  in  the  prop- 
erty as  against  the  real  owner  or  owners,  and  against  them  nothing 
could  have  been  acquired  by  adverse  possession  until  the  fullstatu- 
tory  period  oT  twenty-one  years'  adverse  possession  had  expired.  Dur- 
ing  all  those  twenty-one  years  the  trespassers  could  at  any  time  have 
been  driven  from  the  land  by  the  holders  of  the  paper  title.  Duxing 
tlmt  period  there  was  no  title  at  all  in  Jane  Robb  or  in  anyone  claim- 
ing under  her  as  the  adverse  occupier  of  tlie  premises.  In  1886,  and 
not  before,  title  by  adverse  possession  became  rooted  in  the  land,  but 
its  roots  went  no  deeper  than  1886.  "If,  according  to  Lord  Mans- 
field, the  right  of  possession  is  taken  away  from  the  former  owner,  and 
according  to  Chief  Justice  Tilghnian,  it  is  acquired  by  the  disseisor's 
occupancy  for  the  statutory  period.  Judge  Gibson  was  strictly  accurate 
when  he  said,  in  Graffius  v.  Tottenham,  1  Watts  &  S.  494,  37  Am. 
Dec.  472,  that  the  effect  of  the  statute  was  to  transfer  to  the  adversg- 
occupant  the  title  against  which  it  has  run.  He  added,  'the  title  of 
the  original  owner  is  unaffected  and  untrammelled  till  the  last  moment, 
and  when  it  is  vested  in  the  adverse  occupant,  by  the  completion  of 


Ch.  7)  ESTOPPEL  BY   DEED  799 

the  statutory  bar,  the  transfer  has  relation  to  nothing  which  preceded 
it-,  the  instant  of  conception  is  tlie  instant  of  birth.'  "  Woodward,  J., 
in  Schall  et  al.  v.  WiUiams  Valley  Railroad  Co.,  35  Pa.  191.  B^the 
dee_d_from  Robb  to  Keenan.  Hay  and  Woods  tliere  was  no  severance 
of  the  coal.  There  could  not  have  been,  for  the  deed  conveyed  noth- 
ino-  to  them?  Neither  these  grantees  nor  any  one  claiming  under  them 
at  any  time  before  or  since  the  acquisition  of  the  title  by  adverse  pos- 
session in  1886  have  made  any  attempt  to  sever  the  coal  from  the 
surface. 

In  1886.  when  title  bv  adverse  possession  vested  in  Handel,  then Jn 
p ossession  of  the  surface,  not  only  it,  but  what  was  beneath  it^  vested 
in  him :  but  when  the  title  so  vested  in  him  he  was  in  the  same  posi- 
tion as  Robb  would  have  been  in  1886,  if  still  in  adverse  possession  of 
the  property,  claiming  ownership  in  it  by  such  possession.  Having 
undertaken  to  convey  the  coal  when  he  had  no  title  to  it.  if  rnn  fronted 
by  his  conveyance  of  the  same  at  the  time  of  his  acquisition  of  title 
by  adverse  possession,  he  would  have  been  estopped,  as  against  his 
grantees,  from  denying  their  equitable  ownership  in  the  coal  and  could 
irave  been  compelled  to  convey  to  them.  ("It  is  not  to  be  doubted  that' 
a  vendor  who  undertakes  to  sell  a  full  title  for  a  valuable  considera-, 
tion,  when  he  has  less  tlian  a  fee  simple,  but  afterwards  acquires  tliv 
fee,  holds  it  in  trust  for  his  vendee,  and  will  be  decreed  to  convey  it 
to  his  use."J  Clark  v.  Martin,  49  Pa.  299.  In  Chew  v.  Barnet,  11  Serg. 
&  R.  389,  Judge  James  Wilson  conveyed  to  Chew  before  he  had  title 
to  the  property.  A  conveyance  was  subsequently  made  to  him  by  his 
vendors  under  articles  of  agreement  with  him.  To  secure  the  purchase 
money  he  executed  a  mortgage  upon  the  property  upon  which  it  was 
subsequently  sold  at  sheriff's  sale.  When  Chew,  in  an  action  of  eject- 
ment, sought  to  recover  the  property  from  the  sheriff's  vendees,  it  was 
held  that  their  title  was  paramount  to  his,  and  it  was  said  by  Gibson, 
J. :  "What  is  the  nature  of  the  estate  which  Mr.  Chew  acquired  by 
the  conveyance  from  Judge  Wilson?  When  that  conveyance  was  ex- 
ecuted, the  legal  title  was  in  Jeremiah  Parker,  by  patents  from  the 
commonwealth ;  and  Judge  Wilson  having  nothing  but  an  equitable  ti- 
tle under  the  articles,  could  convey  nothing  more ;  his  deed,  therefore, 
passed  to  Mr.  Chew  only  an  equitable  title.  But  it  is  said,  the  subse- 
quent conveyance  from  Jeremiah  Parker  to  Judge  Wilson  inured  to 
the  benefit  of  Mr.  Chew.  It  did  so ;  but  only  in  equity,  and  to  entitle 
liim  to  call  for  a  conveyance  from  Judge  Wilson ;  and  not  as  vesting 
the  title  in  him,  of  itself,  as  contended,  by  estoppel.  The  facts  pre- 
sented  constitute  the  ordinary  case  of  a  conveyance  before  tlie  grantor 
has  acquired  the  title ;  in  which  the  conveyance  operates  as  an  ?^o^rep- 
ment  to  convev.  which,  when  the  title  has  been  subsequently  acquired. 
may  be  enforced  in  chancery. 'A 

Where  one  conveys  with  a  general  warranty  land  which  he  does  not 
own  at  the  time,  but  afterwards  acquires  the  ownership  of  it,  the  prin- 
ciple  of  estoppel  is  that  such  acquisition  inures  to  the  b-enefit  of  the 


^2h>«-*-v^(^ 


n 


8U0  DERIVATIVE  TITLES  (Part  2 

grantee,  because  the  grantor  is  estopped  to  deny,  against  the  terta^ 
of  his  warranty,  that  he  had  the  title  in  question.  Burtners  v.  Keran, 
24  Grat.  (Va.)  42.  But  the  estoppel  of  the  grantor,  who  subsequently 
acquires  title  for  what  he  had  und£rtal^n^io_^2ieyiousl};_sell,  inures 
only  to  the  benefit  of  his  grantee,  who  can  compel  a  proper  convey- 
ance after  tlie  acquisition  of  title  by  the  grantor.  Those  who  were 
not  privies  or  parties  to  the  original  conveyance  can  take  no  advan- 
tage of  estoppel  arising  from  it.  ""AllerTyr Allen,  45  Pa.  468.  Estoppel s 
may  hp  hy  HppH  hnt  f^<;|-npppk  hy  Heed  avail  Only  in  favor  of  parties 
and  privies.  Sunderlin  v.  Struthers,  47  Pa.  411.  To  this  appellant 
the  estoppel  of  the  appellee  as  against  Robert  Robb's  conveyance  of 
the  coal  is  unavailing,  for  Yie  was  no  party  or  privy  to  it.  _  The  situa- 
tion  as  It  existed  at  the  time  this  ejectment  was  brought  was  a  title 
in  the  appellee  for  herself  absolutely  to  the  surface  and  one-third 
of  the  coal,  and  as  trustee  for  Hay  and  Woods,  or  those  claiming  un- 
der them,  for  an  equitable  title  to  two-thirds.  But  this  outstanding  eq- 
uitable  title  to  a  portion  of  the  coal  was  of  no  avail  to  the  appellant  as 
against  the  appellee,  the  holder  of  the  legal  title  to  the  surface  ajiA  of 
the  coal,  entitled  under  that  title  to  possession  of  both . 

In  1902  an  ejectment  was  brought  for  this  land  by  Rebecca  J.  Ben- 
nett et  al.,  claiming  by  descent  from  Mary  Robb.  The  original  de- 
fendant in  the  action  was  the  present  appellant,  but  the  appellee  and 
others,  as  claimants,  were  made  co-defendants.  The  jury  were  sworn 
as  against  all  the  defendants,  and  the  verdict  having  been  rendered 
in  their  favor,  the  further  contention  of  the  appellant  is  that  his  title 
is  res  adjudicata,  in  view  of  that  verdict.  All  that  heed  be  said  as  to 
this  is  that  the  verdict  was  in  favor  of  all  the  defendants,  but  settled 
no  title  in  dispute  among  tliemselves.  Whether  Chambers  could  as- 
sert title  as  against  his  codefendants,  or  any  of  them,  remained,  as 
the  court  properly  said  in  overruling  a  motion  for  a  new  trial,  to  be 
settled  in  a  controversy  likely  to  arise  between  them.  This  is  that  con- 
troversy. 

Nothing  in  the  assignments  of  error  calls  for  further  discussion. 
They  are  all  overruled  and  the  judgment  is  affirmed." 

»  A.  made  a  deed  of  premises  to  B.,  with  general  covenant  of  warrani:^ ;  the 
next  .V(\'ir  a  (1(M'(1  of  the  same  premises  was  mado  l)y  "X.""fo 'AT,'  Who  thcrtMipon 
\vo\\\  into  imsscssiou  and  continued  therein  for  the  period  of  the  statute  of  liiH- 
ItTitions.  In  an  action  of  ejectment  by  a  .grantee  of  B.,  it  was  held  that  A.  was 
entitled  to  judfonent.  Chatham  v.  Lansford,  149  N.  C.  363,  63  S.  E.  81,  25  L. 
R.  A.  (N.  S.)  129  (1908). 


Ch.  7)  ESTOPPEL  BY  DEED  801 

JARVIS  V.  AIKENS. 

(Supreme  Court  of  Vermont,  1S53.     25  Vt.  635.) 

Appeal  from  the  Court  of  Chancery.  The  bill  was  brought  by  the 
orator  to_foredo^se_a  mortgage,  dated  the  19th  day  of  July,  1845,  and 
to  foreclose  the  equity  of  redemption,  of  Daniel  Aikens  and  those 
claiming  under  him,  of  three  pieces  or  parcels  of  land  in  Barnard,  de- 
scribed in  said  bill  and  mortgage,  as  follows :  one  piece  of  about 
one  hundred  acres,  called  the  "Paul  Ellis  Farm."  One  other  piece  of 
land  contammg  about  one  hundred  acres  Jcnown  as  the  "Lease  Lot." 
And  also  a  piece  of  land  contammg  about  fifty  acres.  The  bill  was  in 
the  usual  form.     *     *     * 

Henry  Murphy  answering  says,  that  he  claims  title  to  a  certain 
part  of  the  mortgaged  premises  described  in  the  orator's  bill  as  the 
"Lease  Lot."  And  turtner  says,, that  he  will  insist  in  defence  to  said 
action,  that  on  the  20th  day  of  November,  1848,  the  said  "Lease  Lot,"» 
belonged  to  the  Society  for  the  Propagation  oi  the  Gospel,  &.C., —sub- 
ject to  such  interest  as  the  orator  might  have  by  virtue  of  the  mort- 
gage deed  from  said  Aikens  to  him,  meuLiuiied  in  said-bill  of  com- 
plaint,  which  interest  extended  only  to  the  unexpired  portion  of  the 
lease  formerly  made  by  said  Society  to  one  Abial  Frye,  dated  January 
1st,  1836,  for  the  term  of  thirty  years  thereafter.  That  on  said  20th 
day  of  November,  1848,  said  Society  executed  a  durable  lease  of  sa:id 
land  to  the  said  Aikens,  and  that  on  the  27th  day  of  November,  1848, 
the  said  Daniel  Aikens  conveyed  to  this  defendant  by  deed  of  war- 
ranty the  same  premises,  subject  to  the  payment  of  a  yearly  rgnt  to 
said  Society,  in  consideration  of  $300,  paid  by  this  defendant. 

That  on  the  first  day  of  January,  1836,  said  Society  were  the  ex- 
clusive owners  of  the  premises,  and  did  lease  the  same,  to  said  Frye  for 
thirty  years  for  a  certain  reserved  rent;  that  said  Frye  gave  a  mort- 
gage deed  to  one  Willard  Caryl,  and  said  Caryl  afterwards  quit-claimed 
to  one  A.  Howe  and  others,  all  of  whom  quit-claimed  their  interest  to 
the  said   Aikprm 

That  afterwards,  and  previous  to  the  time  of  the  execution  of 
the  orator's  deed  by  the  said  Aikens,  said  Aikens  contracted  in  writ- 
ing for  the  sale  of  the  same  to  one  William  Dutton,  and  that  he 
took  possession  under  said  contract ;  that  afterwards  while  said  Frye 
and  said  Dutton  were  both  in  possession,  said  Society  commenced  their 
ejectment  suit  for  the  possession  of  the  premises,  in  the  Windsor  Coun- 
ty Court,  and  at  the  November  Term  of  said  court,  in  1846,  did  re- 
cover the  possession  of  the  same. 

Catherine  Murphy  answering,  sets  forth  the  same  facts,  and  says 
that  said  Henry  Murphy,  before  the  bringing  of  the  orator's  bill,  exe- 
cuted and  delivered  to  her  a  deed  of  the  said  premises,  which  deed 
Aig.Peop. — 51 


802  DERIVATIVE  TITLES  (Part  2 

is  now  in  full  force,  by  the  reasons  of  which,  this  defendant  claims 
the  premises  aforesaid. 

Daniel  Aikens  did  not  answer. 

Testimony  having  been  taken  upon  the  matters  in  issue  between 
the  orator  and  said  Sarah  A.  Goddard,  the  cause,  December  Term, 
1852,  was  heard  on  the  bill  and  answers  of  said  Henry  and  Catherine 
Murphy ;  and  on  the  bill,  pleadings  and  evidence,  as  to  said  Sarah ; 
and  at  said  term,  the  Court  of  Chancery  decreed  that  as  to  said  Henry 
and  Catherine  Murphy,  and  said  Sarah  A.  Goddard,  and  the  several 
parts  of  the  premises  aforesaid  by  them,  respectively  claimed,  being 
the  "Paul  Ellis  Farm,"  so  called  in  the  bill,  and  the  "Lease  Lot,"  so 
called  in  the  bill,  stand  dismissed  out  of,  said  bill ;  and  foreclosure 
on  the  other  premuses. 

Bennett,  J.^°  This  case  comes  up  by  an  appeal  from  the  Court 
of  Chancery.  The  bill  is  brought  to  foreclose  the  equity  of  redemp- 
tion, of  Daniel  Aikens  and  those  claiming  under  him,  in  certain  par- 
c^s  of  lands,  described  in  thebill-  of  complaint,  and  in  the  mort- 
*gage  deed  from  said  Aikens  to  the  orator,  bearmg  date  the  19i:h  dav 
of  July,  1845.  and  recorded  the  same  day.     *     *     * 

The  more  important  question  is,  in  relation  to  the  "Lease  I^ot"  so 
called.  Though  it  may  be  true  that  this  lot  was,  in  1836,  leased  by 
the  Society  for  the  Propagation  of  the  Gospel  in  Foreign  Parts,  to 
Abial  Frye  for  a  period  of  thirty  years;  and  he  mortgaged  it  to  Wil- 
liam Caryl ;  and  though  the  premises  may  have  come  by  quit-claim 
to  Daniel  Aikens,  yet  it  is  clear,  that  without  resort  to  what  shall  be 
the  effect  of  the  recovery  in  ejectment,  by  the  Society  against  F.rye 
and  Dutton,  the  present  plaintiff  cannot  rely  upon  any  title  which  Ai- 
kens had  to  this  lot  under  the  Frye  lease.  Tiie  title  which  Caryl  had 
from  Frye  was  but  a  mortgage,  and  there  is  nothing  in  the  case  to 
show,  that  Caryl's  debt  against  Frye  is  outstanding,  or  that  it  passed 
into  the  hands  of  Aikens.  His  title  is  stated  to  be  by  quit-claim 
deed.  As  our  courts  have  decided,  that  a  mortgagee  cannot  main- 
tain  ejectrneri^'  ^ftpr  th^  rnortgage  debt  has  been  paid,  and  that^to 
rebut  the  presumption  of  payment^  the  mortgage  notes  should^  be 
produced,  or  accounted  for  otherwise :  it  would  seem  to  follow,  that 
so  far,  at  least,  there  was  no  title  in  Aikens  for  him  to  convey;  but 
it  is  claimed  that  Aikens,  after  he  had  executed  his  mortgage  to  the 
plaintiff,  took  a  durable  lease  of  this  lot  from  the  propagation  So- 
ciety, and  that  this  after  title,  inured  to  the  benefit  of  Jarvis. 

It  appears,  that  the  date  of  the  Society's  lease  to  Aikens  was  the 
20th  day  of  November,  1848,  and  recorded  the  same  day;  and  that 
on  the  27th  day  of  November,  1848,  Aikens  conveyed,  by  a  deed  of 
warranty,  the  lot  to  Henry  Murphy;  and  after  this.  Murphy  conveyed 
by  a  deed  of  warranty,  to  Catherine  Alurphy;  and  the  question  is, 
\Adiich  title  shall  prevail. 

10  The  parts  of  the  statement  of  facts  and  of  the  opinion  relating  to  the 
"Paul  Ellis  Farm"  are  omitted. 


Ch.  7)  ESTOPPEL  BY  DEED  803 

It  is  not  seriously  claimed  by  the  counsel  for  Catherine  Murphy,  but 
what  the  subsequent  title  acquired  by  Aikens,  would  inure  to  the  benefit 
of  Jarvis,  so  as  to  estop  Aikens  and  his  heirs  from  claiming  title 
against  him  and  his  assignees ;  but  it  is  said  that  the  principle  should 
not  be  applied,  as  between  the  purchaser  and  a  subsequent  purchaser 
from  the  grantor,  and  that  to  so  apply  it,  would  be  at  war  with  our 
registry  system.  This  is  a  point  of  some  importance,  and  well  deserves 
consideration.  We  need  cite  no  authorities  to  show,  that  Aikens  him- 
self would  be  estopped  from  setting  up  title  against  Jarvis,  because 
he  might  sue  Aikens  on  his  covenants,  if  he  was  not  estopped;  and 
the  law  abhors  circuity  of  action;  but  it  is  said,  if  Jarvis  can  claim 
the  premises,  as  against  Aikens,  to  save  circuity  of  action,  yet  as 
against  Murphy  no  such  reason  exists,  and  the  only  question  is,  which 
shall  be  compelled  to  resort  to  the  covenants  in  Aikens'  deeds,  Jarvis, 
or  Murphy?  In  Trevivan  v.  Lawrence  et  al.,  1  Salk.  276,  it  was  held 
that  the  parties,  and  all  claiming  under  them,  were  bound  by  an  estop- 
pel, and  the  court  put  the  case,  as  between  the  purchaser  and  a  sub- 
sequent purchaser  from  the  grantor.  In  the  same  case,  reported  in 
6  Mod.  258,  and  Ld.  Ray.  1051,  Lord  Holt  cites  39  Ass.  18,  and  speaks 
of  an  estoppel,  as  running  upon  the  land,  and  altering  the  interest  of  it 
— as  creating  an  interest  in,  or  working  upon  the  estate  in  the  land,  and 
as  running  with  the  land  to  whoever  takes  it.  The  covenants  in  Aikens' 
d^ed  to  Jarvis,  may  well  be  said  to  have  a  double  operation,  first  as  an 
estoppeT.  and  secondly  to  pass  the  estate,  tlie  instant  that  Aikens  be- 
carne  the  owner. 

The  covenants  bound  Aikens,  as  an  estoppel,  until  he  took  his  dur- 
able lease  from  the  Society,  and  then  the  estate,  which  devolved  upon 
him,  fed  the  estoppel,  and  the  estate  created  by  the  covenants  in 
Aikens'  deed  by  way  of  estoppel,  ceased  to  be  an  estate  by  estoppel  only, 
and  became  an  interest,  and  gave  the  orator  precisely  what  he  would 
have  had,  in  case  the  durable  lease  had  been  executed  to  Aikens  be- 
fore his  mortgage  deed  to  the  orator.  The  estoppel,  when  it  runs 
\^th  the  land,  operates  upon  the  title,  so  as  actually  to  alter  the  in- 
terest m  It,  in  the  hands  of  the  heir,  or  assigns  of  the  person  bound 
by^the  estoppel,  as  well  as  in  the  hands  of  such  person  himself.  It 
was  said,  by  Lane,  J.,  in  the  case  of  Douglass  v.  Scott,  5  Ohio,  198 
"that  the  obligation  created  by  estoppel,  not  only  binds  the  party 
making  it,  but  all  persons  privy  to  him ;  the  legal  representatives  of 
the  party,  those  who  stand  in  his  situation  by  act  of  law,  and  all  who 
take  his  estate  by  contract,  stand  in  his  stead,  and  are  subjected  to 
all  the  consequences,  which  accrue  to  him.  It  adheres  to  the  land, 
is  transmitted  with  the  estate,  it  becomes  a  muniment  of  title,  and 
all  who  afterwards  acquire  the  title,  take  it  subject  to  the  burden, 
which  the  existence  of  the  fact  imposes  upon  it."  We  think  this  view 
is  in  accordance  with  the  adjudged  cases.     See  Rawlins'  Case,  4  Coke, 

52 ;  Weale  v.  L ,  Pollexfen,  60;  Christmas  et  al.  v.  Oliver,  10  Barn. 

&  Cres.  181 :  Coke.  Littleton,  352  (a);  Wark  v.  Willard,  13  N.  H.  389; 


804  DERIVATIVE  TITLES  (Part  2 

White  V.  Patten,  24  Pick.  (Mass.)  324;  Dudley  v.  Cadwell,  19  Conn. 
227;  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  (N.  Y.)  567,  49  Am. 
Dec.  189.  In  this  view  of  the  case,  our  registry  system  can  jiave  no 
control  of  the~question~  There  was  no  title  in  Aikens,  when  he  deeded 
to  Henry  Murphy,  it  had  before  passed  to  Jarvis,  and  was  vested  in 
him.  In  the  case  from  24  Pick.  (Mass.)  324,  the  point  was  specially 
made  by  counsel,  that  this  doctrine  was  in  conflict  with  their  regis- 
try system;  but  the  court  did  not  regard  the  objection.  The  same 
objection  has  been  made  in  other  cases,  but  without  effect. 

We  see  no  reason,  why  this  doctrine  should  not  be  extended  to  a 
mortgage  deed  with  the  usual  covenants,  as  well  as  to  an  absolute 
deed,  and  indeed  in  the  case  of  24  Pick.  324,  the  claimant's  title  was  un- 
der a  mnrfcrafTP  rJeed 

Though  it  may  be  true,  that  before  the  lease  was  executed  by  the 
Society  to  Aikens,  Henry  Murphy  paid  sixty  dollars  to  the  Society 
towards  rent,  which  was  in  arrear,  and  which  was  to  be  a  part  of  the 
consideration  which  he  was  to  pay  to  Aikens  for  his  deed ;  but  this 
cannot  create  a  resulting  trust  in  Murphy,  to  any  portion  of  the  land, 
which  can  avail  against  the  legal  title  of  Jarvis.  It  was  in  fact  money 
paid  by  Murphy  to  the  use  of  Aikens.  Nothing  can  be  made  out  of 
this,  that  can  aid  Murphy  in  this  controversy. 

We  think  then,  that  the  decree  of  the  Chancellor  should  be  re- 
versed, as  to  Henry  and  Catherine  Murphy  with  costs ;  and  a  decree 
of  foreclosure  pass  against  them  as  to  the  "Lease  Lot,"  and  in  other 
respects  affirmed.^' 


RESSER  V.  CARNEY. 
(Supreme  Court  of  Minnesota,  1S93.     52  Minn.  397,  54  N.  W.  S9.) 

Appeal  by  plaintiffs,  William  C.  Resser  and  Charles  Davison,  from 
a  judgment  of  the  District  Court  of  Ramsey  County,  Kelley,  J., 
entered  March  15,  1892,  that  they  take  nothing  by  the  action  and  for 
costs. 

Dickinson,  J,  Action  for  breach  of  covenant  of  seisin  contained 
in  a  deed  of  conveyance  executed  by  the  defendant  to  the  plaintiffs 
in  February,  1882.  Whatever  title  the  defendant  had  to  convey,  and 
whatever  title  may  have  subsequently  inured  to  the  plaintiffs  as  his 
grantees,  was  derived  from  the  United  States  through  the  Northern 
Pacific  Railroad  Company;  the  land  being  within  the  indemnity  limit 
of  the  land  grant  to  that  corporation.  The  chain  of  conveyances  to 
which  attention  is  directed  is  as  follows : 

In  1879  the  Northern  Pacific  Railroad  Company  conveyed  to  Paine, 

n  A.  conveyed  premises  to  B.,  and  later  conveyed  the  same  premises  to  C, 
with  covenant  of  warranty  "against  all  persons  claiming  by,  through,  or  under 
A."  B.  afterwards  reconveyed  to  A.,  and  D.,  a  creditor  of  A.,  levied  upon  the 
land  as  the  land  of  A.  Had  A.  a  leviable  interest?  See  Wheeler  v.  Young, 
infra,  p.  862,  and  cases  there  referred  to. 


Ch.  7)  ESTOPPEL  BY   DEED  805 

and  in  1880  Paine  conveyed  to  Kindred,  and  the  latter  to  the  de- 
fendant, Carney,  all  such  conveyances  being  by  warranty  deed.  Feb- 
ruary 28,  1882,  Carney  conveyed,  by  warranty  deed  containing  a 
covenant  of  seisin,  to  the  plaintiffs.  This  action  is  for  a  breach  of  the 
covenant  contained  in  that  deed.  Of  the  purchase  price,  $4,480,  there 
was  paid  the  sum  of  $2,480.  On  the  same  day  the  plaintiffs  exe- 
cuted to  their  grantor,  the  defendant,  a  mortgage  on  the  same  land 
to  secure  the  unpaid  part  of  the  purchase  price.  Subsequently,  and  in 
the  same  year,  1882,  the  plaintiffs  conveyed  to  other  parties,  who  in 
1887,  prior  to  the  commencement  of  this  action,  reconveyed  to  the 
plaintiffs.  In  Tulv.  1886.  the  mortgage  given  by  the  plaintiffs  was 
foreclosed  under  the  power  therein  contained,  the  defendant  purchas- 
ing the  property  at  the  foreclosure  sale,  and  no  redemption  was  made 
therefrom. 

The  premises  have  always  been  vacant  and  unoccupied.  This  action 
was  commenced  in  November,  1887.  In  April,  1891,  the  United  States 
executed  a  patent  conveying  the  land  to  the  Northern  Pacific  Rail- 
road Company,  in  which  patent  it  was  recited  that  the  land  had  been 
selected  by  an  agent  of  the  railroad  company,  "as  shown  by  his  orig- 
inal list  of  selections,  certified  under  date  of  March  19,  1883,  and 
April  9,  1883,  by  the  register  and  receiver  at  Fargo,  State  of  Dakota." 
It  does  not  otherwise  appear  when  this  selection  was  approved  by  the 
secretary  of  the  interior. 

The  selection  of  indemnity  lands,  which  was  to  be  made  "under  the 
direction  of  the  secretary  of  the  interior,"  (13  St.  at  Large,  p.  367,  c. 
217,  §  3,)  did  not  become  effectual,  nor  did  the  title  pass  from  the 
United  States,  at  least  until  the  selection  was  approved,  or  in  some 
way  sanctioned  by  the  secretary  of  the  interior;  and  hence,  so  far  as 
appears  in  this  case,  not  until  the  issuing  of  the  patent,  in  April,  1891, 
which  evidences  such  approval.  Musser  v.  McRae,  38  Minn.  409,  38 
N.  W.  103 ;  Id.,  44  Minn.  343,  46  N.  W.  673 ;  United  States  v.  Mis- 
souri, K.  &  T.  Ry.  Co.,  141  U.  S.  358,  12  Sup.  Ct.  13,  35  L.  Ed.  766. 
Hence  it  will  be  observed  that  at  the  time  of  the  conveyance  from  the 
defendant  to  the  plaintiffs,  February,  1882,  the  title  was  still  inthe 
United  States,  and  that  it  was  not  until  some  nine  years  thereafter. 
nor  until  more  than  three  years  after  the  commencement  of  thisaction , 
that  the  title  was  conveyed  to  the  railroad  company.  Not  until  then 
could  such  title  have  been  transmitted,  or  have  inured  by  operation 
of  law,  to  the  grantees  of  that  company,  immediate  or  remote.  In 
other  words,  the  covenant  of  seisin  appears  to  have  been  wholly  brolcen 
when  it  was  made,  so  that  the  plaintiffs;  had  a  rjo-ht  of  action  _to 
recover  the  purchase  money  paid ;  and  not  until  after  this  actioo  was 
commenced  was  "the  defendant  in  a  position,  so  far  as  appears,  to_jn- 
voke  the  application  of  the  principle  that  a  title  acquired  by  a  grantor 
after  a  conveyance  by  him,  with  covenants,  inures  to  the  benefit  of 
his  covenantee.    The  question  here  presented  is  whether  that  principle 


O 


806  DERIVATIVE  TITLES  (Part  2 

is_to  ^e  applied,  under  such  circumstances,  to  defeat  a  recovery  on  the 
covenant  broken.  Otherwise  expressed,  the  question  is  whether  the  f  ^ 
title  acquired  during  the  pendency  of  the  action  for  breach  of  cove-  Vl„--' 
nant  was  actually  transferred  to  and  vested  in  the  plaintiffs  by  operation 
ol  law,  so,  that  they  were  compelled  to  and  did  actually  acquire  it,  even 
without  their  consent  and  against  their  will.  If  so,  that  fact  would 
probably  be  available  to  the  defendant  in  defense  of  such  an  action,  or 
at  least  in  mitigation  of  damages. 

Upon  the  question  thus  presented,  the  law  cannot  be  said  to  be  set- 
tled.  In  support,  wholly  or  to  some  extent,  of  the  proposition  "tKat 
a  title  acquired  by  the  grantor  subsequent  to  the  conveyance  by  him 
inures  by  operation  of  law  to  his  grantee,  even  though  he  is  unwilling 
then  to  accept  it,  and  hence  will  mitigate  the  damages  recoverable  for 
breach  of  covenant,  or  wholly  defeat  an  action  for  damages,  accord- 
ing to  the  circumstances  of  the  case^  may  be  cited  Baxter  v.  Bradbury, 
20  Me.  260,  37  Am.  Dec.  49;  King  v.  Gilson's-Adm'x,  32  111.  348,  83 
Am.  Rep.  269;  Reese  v.  Smith,  12  Mo.  344;  Morrison  v.  Underwood, 
20  N.  H.  369;  Knowles  v.  Kennedy,  82  Pa.  445;  Farmers'  Bank  v. 
Glenn,  68  N.  C.  35;   Cornell  v.  Jackson,  3  Cush.  (Mass.)  505;   Boulter 

V.  Hamilton,  15  U.  C.  C.  P.  125,  citing  doe  v.  Webster,  2  U. 

C.  O.  B.  225.  See,  also.  Knight  v.  Thayer,  125  Mass.  25.  In  some  of 
these  cases,  however,  it  may  be  noticed  that  the  plaintiff*  was  in  pos- 
session of  the  granted  lands  under  his  deed, 

Qn  the  contrary,  the  doctrine  is  well  supported  by  authority  that 
a  grantee  to  whom  no  title  passed  by  the  deed  of  conveyance,  who  ac- 
quired no  possession,  and  no  right  of  possession,  may  recover  the 
purchase  monev  paid^  with  interest,  in  an  action  for  a  breach  of  the 
covenant  of  seisin ,  even  though  the  grantor  may  have  acquired  a  title 
during  the  pendency  of  such  an  action,  or,  perhaps^  even  prior  to  its 
commencement ;  that  the  grantee  is  not  to  be  compelled  to  accept 
the  after-acquired  title  in  satisfaction  of  the  already  broken  covenant 
of  seisin,  or  in  mitigation  of  damages  recoverable  for  the  breach. 
Blanchard  v.  Ellis,  1  Gray  (Mass.)  195,  61  Am.  Dec.  417;  Tucker 
v.  Clarke,  2  Sandf.  Ch.  (N.  Y.)  96;  Bingham  v.  Weiderwax,  1  N.  Y. 
509;  Nichol  v.  Alexander,  28  Wis.  118;  Mclnnis  v.  Lyman,  62  Wis. 
191,  22  N.  W.  405;  Burton  v.  Reeds,  20  Ind.  87,  93;  Rawle,  Cov. 
§§  179-182,  256-258,  264,  265;  Bigelow,  Estop.  440;  Sedg.  &  W. 
Tr.  Title  Land,  §  850.  While  in  some  of  the  cases  last  cited  there  had 
been  an  eviction  of  the  covenantee  after  he  had  been  in  possession, 
that  would  not  distinguish  such  cases  from  that  now  before  us.  The 
inability  of  the  plaintiffs  to  enter  into  possession  of  this  vacant  land 
without  committing  a  trespass,  by  reason  of  the  paramount  title  being 
in  another,  would  have  the  same  effect,  as  respects  the  right  of  action 
for  a  breach  of  the  covenants  contained  in  the  deed,  as  would  an  evic- 
tion if  possession  had  been  acquired.  Fritz  v.  Pusey,  31  Minn.  368, 
18  N.  W.  94;    Shattuck  v.  Lamb,  65  N.  Y.  499,  22  Am.  Rep.  656. 


Ch.  7)  ESTOPPEL  BY  DEED  807 

To  our  minds  the  authorities  last  cited  present  the  view  of  the  law 
most  consistent  with  reason  and  with  familiar  legal  principles,  as  well 
as  the  rule  most  conducive  to  justice,  in  its  practical  application. 

It  is  certain,  if  the  defendant's  deed  conveyed  no  title,  that  the  plain- 
tiffs had  a  legal  right,  when  this  action  was  commenced,  to  recover 
the  purchase  price  paid  for  a.  title.  They  elected  to  pursue  that  remedy, 
and  still  insist  upon  the  legal  right.  We  cannot  understand  how  that 
perfect,  absolute  legal  right  of  action,  and  especially  after  an  action  has 
been  already  instituted,  is  defeated;  how  the  right,  at  the  election 
of  the  grantee,  to  enforce  his  action  for  the  breach  of  the  covenant  is 
taken  away  or  lost  by  any  proper  application  of  the  principle  that 
an  after-acquired  title  inures  to  the  benefit  of  the  grantee,  by  force 
of  his  covenants,  and  upon  principles  embraced  within  the  general 
doctrine  of  estoppel.  We  do  not  concur  in  the  proposition  that  the 
principle  just  referred  to  is  effectual  to  actually  transfer  and  vest  in 
the  covenantee  an  estate  acquired  by  the  covenantor  subsequent  to  his 
conveyance.  See,  in  addition  to  the  authorities  above  cited,  Bucking- 
ham V.  Hanna,  2  Ohio  St.  551 ;  Burtners  v.  Keran,  24  Grat.  (Va.)  42, 
67;  Chew  v.  Barnet,  11  Serg.  &  R.  (Pa.)  3S9,  391.  Indeed,  that  the 
estate  is  thus  actually  transferred  to  the  covenantee,  without  resting 
in  the  covenantor,  to  whom  the  after-acquired  title  is  in  terms  conveyed, 
is  inconsistent  with  the  idea  of  an  estoppel  binding  the  latter  and  those 
in  privity  with  him ;  and  yet  it  is  not  to  be  doubted  that  the  doctrine 
which  we  are  considering  really  rests  upon  the  ground  of  estoppel.  It 
is  founded  on  equitable  principles,  and  aff'ords  to  a  grantee  with  cov- 
enants a  remedy  of  an  equitable  nature  with  respect  to  a  title  acquired 
by  the  grantor  after  he  had  assumed  to  convey  the  same;  and  doubt- 
less courts  of  law,  at  this  day,  recognize  and  apply  the  principle  of 
estoppel,  in  such  cases,  as  courts  of  equity  are  wont  to  do.  They  will 
treat  the  after-acquired  title  as  though  it  had  been  conveyed,  when 
equity  would  decree  that  a  conveyance  be  made.     Rawle,  Cov.  §  258. 

But  this  equitable  right  is  one  in  favor  of  the  covenantee,  resting 
upon  the  estoppel  of  the  covenantor  to  assert,  as  agamst  him,  n  title 
to  the  property.  If  the  grantee  acquires  nothing  by  the  deed  to  him, 
and  has  and  asserts  a  legal  cause  of  action  for  covenant  broken,  jio 
principle  of  estoppel  operates  against  him,  to  compel  him,  perhaps 
years  afterwards,  as  in  this  case,  to  accept,  in  satisfaction  of  that  legal 
cause  of  action,  wholly  or  partially,  a  title  which  his  covenantor  may 
then  procure.  The  latter,  whose  covenant  has  been  wholly  broken, 
has  no  right  to  elect,  as  against  the  covenantee,  and  to  his  prejudice, 
whether  he  will  respond  in  damages  for  the  breach  by  repaying  the 
purchase  money,  or  buy  in  the  paramount  title,  when  the  value  of  the 
property  may  have  greatly  depreciated,  and  compel  the  plaintiff  to  ac- 
cept that  title.  The  right  of  election  is.  and  should  be.  with  the  other 
party..  He  had  the  benefit  of  the  estoppel,  but  it  is  not  to  be  imposed 
upt)"  him  as  a  burden,  at  the  will  of  the  party  who  alone  is  subject 


808  DERIVATIVE  TITLES  "  (Part  2 

to  the  estoppel.  Hejnay  elect  to  pursue  the  action  at  law,  and  recover 
the  consideration  paid  fo?a  title~which  was  not  conveyed  to  him.  At 
least,  he  mav  so  elect,  as  the  plaintiffs  did  in  this  case,  at  any  time^- 
fore  the  acquisition  of  the  title  by  the  covenantor. 

The  case  of  Burke  v.  Beveridge,  15  Minn.  205,  (Gil.  160,)  did  not 
require  a  consideration  of  the  question  now  before  us.  The  decision 
necessarily  rested  upon  another  ground;  and  while,  in  the  opinion 
of  the  court,  Baxter  v.  Bradbury,  supra,  is  referred  to  wnth  approv- 
al, we  do  not.  accept  the  dictum  as  expressing  the  law  on  this  sub- 
ject. 

The  respondent  adopts  the  memorandum  or  opinion  of  the  learned 
judge  who  tried  the  cause,  in  place  of  a  brief,  for  the  purposes  of  this 
appeal.  We  infer  that  the  respondent  relies  upon  the  proposition, 
upon  which  the  court  based  its  decision,  that,  by  reason  of  the  fore- 
closure of  the  purchase-money  mortgage,  the  purchase  by  the  defend- 
ant at  the  foreclosure  sale,  and  the  nonredemption  therefrom,  the 
plaintiffs'  right  of  action  for  breach  of  the  covenant  of  seisin  has  been 
extinguished ;  that  it  passed  from  the  plaintiffs  back  to  the  defendant, 
the  vendor,  when  by  the  foreclosure  the  plaintiffs  were  divested,  and 
the  defendant  reinvested,  with  whatever  estate  or  interest  was  con- 
veyed by  the  deed.  Kimball  v.  Bryant,  25  Minn.  496,  is  cited  in  this 
connection.  This  contention  must  rest  upon  the  familiar  legal  prop- 
osition that,  a  right  of  action  by  a  grantee  upon  covenants  which  run 
with  the  land  does  not  remain  in  him  after  he  has  transferred  the  es- 
tate, but  passes  with  it.  But  we  do  not  deem  the  proposition  applicable 
to  the  case  here  presented. 

It  will  be  kept  in  mind  that  the  mortgage  was  executed  by  the  ven- 
dees to  the  vendor  contemporaneously  with  the  conveyance  made  to  the 
former  by  the  latter,  and  for  the  purpose,  merely,  of  securing  the  pay- 
ment of  a  part  of  the  purchase  price. 

We  may  state,  without  discussing  the  proposition,  that  the  vendees 
were  not  estopped  or  precluded,  by  the  covenants  in  their  mortgage 
to  the  vendor,  from  recovering  for  a  breach  of  the  similar  covenants 
contained  in  the  deed  of  the  latter  to  them.  Sumner  v.  Barnard,  12 
Mete.  (Mass.)  459;  Brown  v.  Staples,  28  Me.  497,  48  Am.  Dec.  504; 
Smith  V.  Cannell,  32  Me.  123;  Haynes  v.  Stevens,  11  N.  H.  28;  Con- 
nor V.  Eddy,  25  Mo.  72;  Rawle,  Gov.  (5th  Ed.)  §  266. 

In  Kimball  v.  Bryant,  supra,  it^ was  considered  that,  if  the  granlee 
under  a  deed  of  conveyance  with  a  covenant  of  seisin  conveys  the  same 
land  to  another,  it  may  be  presumed,  "unless  there  be  something  to 
show  a  contrary  intention,"  that,  although  the  covenant  was  broken 
Vjixen  it  was  given,  he  intends  to  confer  on  his  grantee  the  benefit  of  the 
covenant,  so  far  as  necessary  for  his  protection ;  tn  transfer  Vn'p  rJcrhf 
to  sue  for  the  breach,_so  far  as  his  grantee  sustains  injury  by  reason 
of  it.  But  in  a  case  like  that  under  consideration  the  circumstances  do 
"show  a  contrary  intention."    When  the  plaintiffs  purchased  the  prop- 


Ch.  7)  ESTOPPEL  BY  DEED  809 

erty,  and  took  a  deed  with  covenants  embracing  that  of  seisin,  the 
presumption  is  irresistible  and  conclusive  that  the  covenant  was  in- 
tended by  both  parties  to  the  deed  to  be  effectual  as  an  obligatory 
assurance  of  title,  p-ivin<y  an  immediatp  right  nf  ^rUnn  to  the  plaintiffs 
if  the  covenant  should  be  found  to  have  been  broken.  It  would  be 
unreasonable  to  suppose  that  when  the  purchasers  gave  back  to  their 
vendor  a  mortgage  of  the  land,  merely  to  secure  the  payment  of  a 
part  of  the  purchase  price,  it  was  the  intention  of  the  parties  that  the 
purchasers  should  thereby  divest  thertiselves  of,  or  relinquish,  in  favor 
of  their  covenantor,  the  benefits  of  the  covenant,  which  in  the  very 
same  transaction  they  had  just  taken  Trom  him  tor  tneir  own  pro- 
tection. It  could  not  have- been  intended  that  the  mortgage  should,  in 
eft'ect,  embrace  and  hypothecate  to  the  vendor  his  own  covenant  assur- 
ing to  his  vendees  the  title  which  he  then  assumed  to  convey.  As__be- 
tween  the  parties  to  such  a  transaction,  the  mortgage  back  to  the 
vendor  is  to  be"  deemed  as  reconveving,  subject  to  the  condition "o? 
defeasance,  only  such  estate  as  is  conveved  hv  thp  mnrtg-agee.  to  the 
rnortg^g^^'s-.  It  was  not  effecUial  as  between  these  parties,  to  dis- 
charge the  vendor  from  his  obligation  upon  the  covenant  of  seisin, 
wHTch,^  being  then  broken,  gave  to  the  mortgagors  an  immediate  right 
of  action.  The  general  rule  that  the  right  of  action  upon  covenants 
which  run  with  the  land  passes  with  the  estate,  and  does  not  remain 
in  a  covenantee  after  the  estate  has  been  transferred,  is  not  ap- 
phcaitle-^  Smith  v.  Cannell.  32  Me.  123;  Haynes  v.  Stevens,  11  N.  H. 
28;  Randall  v.  Lower,  98  Ind.  255;  Rawle,  Gov.  266;  Bigelow,  Estop. 
(5th  Ed.)  411^13. 

Hence  the  plaintiffs,  upon  the  case  here  presented,  were  entitled 
to  recover  for  breach  of  covenant.    Judgment  reversed.^^ 

12  On  the  subject-matter  of  the  chapter  generally,  see  Rawle  on  Covenants 
for  Title,  c.  11,  and  Bigelow  on  Estoppel  (6th  Ed.)  c  11. 


810  DERIVATIVE  TITLES  (Part  2 

CHAPTER  VIII 
PRIORITIES 


SECTION  1.— FRAUDULENT  CONVEYANCES 


ST.  27  ELIZ.  c.  4  (1585). 

Sec.  1.  Forasmuch  as  not  only  the  Queen's  most  excellent  Majesty, 
but  also  divers  of  her  Highness's  good  and  loving  subjects,  and  bodies 
politic  and  corporate,  after  conveyances  obtained  or  to  be  obtained 
and  purchases  made  or  to  be  made,  of  lands,  tenements,  leases,  estates, 
and  hereditaments,  for  money  or  other  good  considerations,  may  have, 
incur,  and  receive  great  loss  and  prejudice  by  reason  of  fraudulent 
and  covinous  conveyances,  estates,  gifts,  grants,  charges,  and  limitations 
of  uses  heretofore  made  or  hereafter  to  be  made,  of,  in,  or  out  of 
lands,  tenements,  or  hereditaments  so  purchased  or  to  be  purchased ; 
which  said  gifts,  grants,  charges,  estates,  uses,  and  conveyances  v/ere, 
or  hereafter  shall  be,  meant  or  intended  by  the  parties  that  so  make  the 
same  to  be  fraudulent  and  covinous,  of  purpose  and  intent  to  deceive 
such  as  have  purchased  or  shall  purchase  the  same ;  or  else,  by  the  se- 
cret intent  of  the  parties,  the  same  be  to  their  own-  proper  use,  and  at 
their  free  disposition,  colored  nevertheless  by  a  feigned  countenance 
and  show  of  words  and  sentences,  as  though  the  same  were  made  bona 
fide,  for  good  causes,  and  upon  just  and  lawful  considerations: 

Sec.  2.  P'or  remedy  of  which  inconveniences,  and  for  the  avoiding 
of  such  fraudulent,  feigned,  and  covinous  conveyances,  gifts,  grants, 
charges,  uses,  and  estates,  and  for  the  maintenance  of  upright  and  just  ^ 
dealing  in  the  purchasing  of  lands,  tenements,  and  hereditaments : 
Be  it  ordained  and  enacted,  by  the  authority  of  this  present  Parliament, 
that  all  and  every  conveyance,  grant,  charge,  lease,  estate,  incum- 
brance, and  limitation  of  use  or  uses,  of,  in.  or  out  of  any  lands,  tene- 
ments, or  other  hereditaments  whatsoever,  had  or  made  any  time  here- 
tofore sithence  the  beginning  of  the  Queen's  Majesty's  reign  that  now 
is,  or  at  any  time  hereafter  to  be  had  or  made,  for  the  intent  and  of 
purpose  to  defraud  and  deceive  such  person  or  persons,  bodies  politic 
or  corporate,  as  have  purchased  or 'shall  afterward  purchase  in  fee 
simple,  fee  tail,  for  life,  lives,  or  years,  the  same  lands,  tenements,  and 
hereditaments,  or  any  part  or  parcel  thereof,  so  formerly  conveyed, 
granted,  leased,  charged,  incumbered,  or  limited  in  use,  or  to  defraud 
and  deceive  such  as  have  or  shall  purchase  any  rent,  profit,  or  com- 
modity in  or  out  of  the  same,  or  any  part  thereof,  shall  be  deemed 


Cll.  8)  PRIORITIES  811 

and  taken,  only  as.  against  that  person  or  persons,  bodies  politic  and 
corporate,  his  an»  their  heirs,  successors,  executors,  administrators, 
and  assigns,  and  against  all  and  every  other  person  or  persons  lawfully 
having  or  claiming  by,  from,  or  under  them,  or  any  of  them,  which 
have  purchased  or  shall  hereafter  so  purchase  for  money  or  other  good 
consideration,  the  same  lands,  tenements,  or  hereditaments,  or  any 
part  or  parcel  thereof,  or  any  rent,  pront,  or  commodity,  in  or  out  of 
the  same,  to  be  utterly  void,  frustrate,  and  of  none  effect ;  any  pre- 
tence, color,  feigned  consideration,  or  expressing  of  any  use  or  uses 
to  the  contrary  notwithstanding. 

Sec.  3.  And  be  it  further  enacted  by  the  authority  aforesaid,  that 
all  and  every  the  parties  to  such  feigned,  covinous,  and  fraudulent 
gifts,  grants,  leases,  charges,  or  conveyances  before  expressed,  or  be- 
ing privy  and  knowing  of  the  same  or  any  of  them,  which  after  the 
twentieth  day  of  April  next  coming  shall  wittingly  and  willingly  put 
in  use,  avow,  maintain,  justify,  or  defend  the  same  or  any  of  them, 
as  true,  simple,  and  done,, had,  or  made  bona  fide,  or  upon  good  con- 
sideration, to  the  disturbance  or  hindrance  of  the  said  purchaser  or 
purchasers,  lessees,  or  grantees,  or  of  or  to  the  disturbance  or  hin- 
drance of  their  heirs,  successors,  executors,  administrators,  or  assigns, 
or  such  as  have  or  shall  lawfully  claim  anything  by,  from,  or  under 
them  or  any  of  them,  shall  incur  the  penalty  and  forfeiture  of  one 
year's  value  of  the  said  lands,  tenements,  and  hereditaments  so  pur- 
chased or  charged ;  the  one  moiety  whereof  to  be  to  the  Queen's  Maj- 
esty, her  heirs  and  successors,  and  the  other  moiety  to  the  party  or  par- 
ties grieved  by  such  feigned  and  fraudulent  gift,  grant,  lease,  convey- 
ance, incumbrance,  or  limitation  of  use,  to  be  recovered  in  any  of  the 
Queen's  courts  of  record  by  an  action  of  debt,  bill,  plaint,  or  informa- 
tion, wherein  no  essoin,  protection,  or  wager  of  law  shall  be  admitted 
for  the  defendant  or  defendants ;  and  also,  being  thereof  lawfully  con- 
victed, shall  suffer  imprisonment  for  one-half  year  without  bail  or 
mainprise. 

Sec.  4.  Provided  also,  and  be  it  enacted  by  the  authority  aforesaid, 
that  this  Act,  or  anything  therein  contained,  shall  not  extend  or  be 
construed  to  impeach,  defeat,  make  void  or  frustrate  any  conveyance, 
assignment  of  lease,  assurance,  grant,  charge,  lease,  estate,  interest, 
or  limitation  of  use  or  uses,  of,  in,  to,  or  out  of,  lands,  tenements,  or 
hereditaments  heretofore  at  any  time  had  or  made,  or  hereafter  to  be 
had  or  made,  upon  or  for  good  consideration  and  bona  fide  to  any 
person  or  persons,  bodies  politic  or  corporate;  anything  before  men- 
tioned to  the  contrary  hereof  notwithstanding. 

Sec.  5.  And  be  it  further  enacted  by  the  authority  aforesaid,  that 
if  any  person  or  persons  have  heretofore,  sithence  the  beginning  of 
the  Queen's  Majesty's  reign  that  now  is,  made  or  hereafter  shall  make 
any  conveyance,  gift,  grant,  demise,  charge,  limitation  of  use  or  uses, 
or  assurance  of,  in.  or  out  of  any  lands,  tenements,  or  hereditaments, 
with  any  clause,  provision,  article,  or  condition  of  revocation,  deter- 


812  DERIVATIVE  TITLES  (Part  2 

mination,  or  alteration,  at  his  or  their  will  or  pleasure,  of  such  con- 
veyance, assurance,  grants,  limitations  of  uses  or  estates  of,  in,  or  out 
of  the  said  lands,  tenements,  or  hereditaments,  or  of,  in,  or  out  of  any 
part  or  parcel  of  them,  contained  or  mentioned  in  any  writing;  deed, 
or  indenture  of  such  assurance,  conveyance,  grant,  or  gift;  and  after 
such  conveyance,  grant,  gift,  demise,  charge,  limitation  to  uses,  or  as- 
surance so  made  or  had,  shall  or  do  bargain,  sell,  demise,  grant,  convey, 
or  charge  the  same  lands,  tenements,  or  hereditaments,  or  any  part  or 
parcel  thereof,  to  any  person  or  persons,  bodies  politic  and  corporate, 
for  money  or  other  good  consideration  paid  or  given  (the  said  first 
conveyance,  assurance,  gift,  grant,  demise,  charge,  or  hmitation,  not  by 
him  or  them  revoked,  made  void,  or  altered,  according  to  the  power 
and  authority,  reserved  or  expressed  unto  him  or  them  in  and  by  the 
said  secret  conveyance,  assurance,  gift,  or  grant)  that  then  the  said 
former  conveyance,  assurance,  gift,  demise,  and  grant,  as  touching  the 
said  lands,  tenements,  and  hereditaments,  so  after  bargained,  sold,  con- 
veyed, demised,  or  charged  against  the  said  bargainees,  vendees,  les- 
sees, grantees,  and  every  of  them,  their  heirs,  successors,  executors,  ad- 
ministrators, and  assigns,  and  against  all  and  every  person  and  per- 
sons which  have,  shall,  or  may  lawfully  claim  anything  by,  from,  or 
under  them  or  any  of  them,  shall  be  deemed,  taken,  and  adjudged  to  be 
void,  frustrate,  and  of  none  effect,  by  virtue  and  force  of  this  present 
Act. 

Sec.  6.  Provided,  nevertheless,  that  no  lawful  mortgage  made  or 
to  be  made  bona  fide,  and  without  fraud  or  covin,  upon  good  consider- 
ation, shall  be  impeached  or  impaired  by  force  of  this  Act,  but  shall 
stand  in  the  like  force  and  effect  as  the  same  should  have  done,  if  this 
Act  had  never  been  had  nor  made ;  anything  in  this  Act  to  the  contrary 
in  any  wise,  notwithstanding.^ 


DOE  ex  dem.  OTLEY  v.  MANNING. 

(Court  of  King's  Bench,  1807.    9  East,  59.) 

In  ejectment  for  certain  messuages  and  premises  at  St.  Mary  Mag- 
dalen, Bermondsey,  in  Surry;  a  verdict  was  found  for  the  defendants, 
subject  to  the  opinion  of  the  Court  on  the  following  case.  Thomas 
Clendon,  being  seised  in  fee  of  the  premises  in  question,  by  his  will  of 
the  6th  of  March,  1750,  duly  executed  and  attested,  demised  the  prem- 
ises (amongst  others)  to  his  nephew  William  Clendon  for  life ;  remain- 
der to  trustees  during  W.  C.'s  life  to  preserve  contingent  remainders ; 
remainder  to  the  first  and  other  sons  of  W.  C.  successively  in  tail  male ; 

1  As  to  character  of  American  legislation,  see  Bigclow  on  Fraudulent  Con- 
veyances (Ivnowlton's  Ed.)  p.  622  et  seq. 

Pure  chattels  are  not  XNithin  the  statute.  Bill  v.  Cureton,  2  My.  &  K,  503 
(1835.) 


Ch.  8)  PRIORITIES  813 

remainder  to  the  testator's  nephew,  Owen  Manning-,  for  life;  remain- 
der to  trustees  during  O.  M.'s  Hf e  to  support  contingent  remainders ; 
remainder  to  the  first  and  other  sons  of  O.  M.  successively  in  tail 
male ;  remainder  to  his  own  right  heirs  for  ever ;  and  gave  the  usual 
powers  of  leasing,  in  possession,  at  rack  rents,  for  21  years ;  and  also 
power  to  each  of  the  devisees,  when  in  actual  possession,  to  settle 
upon  such  person  as  he  should  marry,  for  her  jointure,  premises  of  the 
yearly  value  of  £80.  for  every  £1000.  he  should  receive  with  such  wife. 
The  testator  died  seised  of  the  premises  in  1751;  and  Wm.  Clendon, 
his  nephew,  died  in  March,  1764,  without  issue,  whereby  the  estate 
descended  to  O.  Manning,  the  next  tenant  for  life,  in  remainder.  By 
indenture  of  bargain  and  sale  of  the  25th  of  Nov.  1782,  duly  enrolled 
in  C:  B.,  between  Owen  Manning  and  George  Owen  Manning,  his  eld- 
est son,- of  the  1st  part,  T.  Green  of  the  2d  part,  and  P.  Willson  of  the 
3d  part,  Owen  Manning  and  George,  his  son,  sold  and  conveyed  the 
premises  to  Green  in  fee,  to  the  intent  that  he  might  become  tenant 
thereof,  for  the  purpose  of  suffering  a  recovery,  to  the  use  of  O.  Man- 
ning and  his  assigns  for  life ;  remainder  to  the  said  G.  O.  Manning  in 
fee;  and  a  recovery  was  accordingly  suffered  in  Hil.  term  23  Geo.  III. 
On  the  15th  of  March,  1783,  G.  O.  Manning  died  intestate,  and  without 
issue;  whereby  the  reversion  in  fee  descended  to  John  Manning  his 
brother  and  heir  at  law.  By  indentures  of  lease  and  release  of  the  11th 
and  12th  of  April,  1783,  between  Owen  Manning,  who  was  thtn  in 
possession,  of  the  first  part,  the  said  John  Manning  of  the  second  part, 
and  W.  Gill  and  H.  S.  Gill  of  the  third  part;  reciting  the  former  in- 
denture of  bargain  and  sale,  and  the  recovery,  and  the  death  of  G.  O. 
Manning,  and  that  divers  other  messuages,  &c.,  having  in  like  manner 
descended  to  the  said  John  Manning,  he  was  desirous  of  making  some 
settlement  and  provision  for  the  benefit  of  his  mother,  in  case  she 
should  survive  Owen  Manning,  and  of  his  sisters  and  younger  brother ; 
it  was  witnessed,  that  in  consideration  of  the  natural  love  and  affection 
which  John  Manning  bore  towards  Catharine  Manning  his  mother, 
and  Jane,  Catharine  Matilda,  Ann,  and  Matilda  Manning,  his  sisters, 
and  Charles  Manning,  his  brother,  and  for  making  provision  for  them 
for  their  respective  lives,  and  of  10s.  &c. ;  Owen  Manning  and  John 
Manning  conveyed  to  W.  and  H.  S.  Gill  in  fee,  amongst  others,  all 
the  said  premises,  habendum,  &c.,  to  the  use  of  Owen  Manning  for 
life,  sans  waste;  remainder  to  the  use  of  the  trustees,  during  the  life 
of  O.  M.,  in  trust  to  preserve  contingent  remainders ;  remainder  to 
the  use  of  Cath.  Manning  for  life,  sans  waste ;  remainder  to  the  trustees 
and  their  heirs,  upon  trust,  during  the  lives  of  Jane,  Catharine  Matilda, 
Ann,  Matilda,  and  Charles  Manning,  and  the  survivor  of  them,  to  re- 
ceive the  rents,  &c.,  and  pay  the  same  equally  amongst  his  said  sisters 
and  brother,  and  to  the  survivor  of  them ;  remainder  to  John  Manning 
in  fee ;  with  the  like  power  of  leasing  as  is  contained  in  Clendon's  will ; 
and  a  power  for  Owen  Manning,  during  his  life,  and  Catharine  his 
mother,  during  her  life,  with  the  privity  and  consent  of  John  Manning 


814  DERIVATIVE  TITLES  (Part  2 

and  the  trustees,  or  the  survivor,  his  heirs  or  assigns,  testified  as  there- 
in mentioned;  and  for  John  Manning,  after  his  father's  and  mother's 
decease,  with  the  Uke  pri\  ity  of  the  trustees,  or  the  survivor,  his  heirs 
or  assigns,  testified  as  aforesaid;  to  execute  like  leases  for  99  years. 
Owen  Manning  died  the  9th  of  Sept.,  1801.  By  indentures  of  lease 
and  release  of  the  16th  and  17th  of  May,  1805,  between  John  Planning 
of  the  first  part,  R.  Otley  of  the  second  part,  and  H.,  Otley  of  the 
third  part ;  reciting  the  indenture  of  bargain  and  sale  of  the  25th  of 
Nov.,  1782,  and  the  deaths  of  George  Owen  IVIanning  and  Owen  Man- 
ning, and  that  John  Manning  had  contracted  with  R.  Otley  for  the 
absolute  sale  of  the  premises ;  it  was  witnessed,  that  in  consideration 
of  £1800.  to  John  Manning  paid,  he  conveyed  to  R.  and  H.  Otley  in 
fee  all  the  said  premises  for  which  this  ejectment  was  brought,  being 
part  of  the  premises  in  the  last-mentioned  deed ;  habendum  to  such 
uses  as  R.  Otley  should  appoint;  and  in  the  mean  time,  and  subject 
thereto,  to  the  use  of  R.  Otley  in  fee.  The  consideration  for  the  con- 
veyance to  the  lessor  of  the  plaintiff  was  paid  thus ;  by  a  book  debt 
from  John  Manning  to  the  lessor  of  plaintiff  £417.  2s.  9d.  By  cash  at 
sundry  times  £1382.  17s.  3d.  The  book  debt  was  contracted,  and  £150. 
of  the  consideration  money  paid,  at  the  date  of  the  purchase  contract, 
and  £387.  5s.  6d.  at  a  subsequent  period,  but  before  the  execution  of 
the  conveyance  of  1805,  and  before  the  lessor  of  the  plaintiff  had  no- 
tice of  the  deed  of  1783.  The  residue- of  the  consideration  was  paid, 
and  the  deeds  executed,  subsequent  to  such  notice.  John  Manning  did 
not  divest  himself  of  all  his  property  by  the  conveyance  of  tlie  12th  of 
April,  1783.  There  was  no  fraud  in  the  last-mentioned  conveyance, 
unless  fraud  is  to  be  implied  by  construction  or  operation  of  law.  The 
question  for  the  opinion  of  the  Court  was,  Whether  the  lessor  of  the 
plaintiff  was  entitled  to  recover  against  the  defendant  Manning?  If 
the  Court  should  be  of  opinion  that  he  was,  a  new  trial  was  to  be  had, 
or  an  issue  granted,  as  the  Court  should  direct,  between  the  plaintiff 
and  the  defendant  Goom,  to  try  the  validity  of  his  lease.  If  the  ver- 
dict on  such  new  trial  or  issue  should  be  found  against  Goom,  a  verdict 
was  to  be  entered  against  both  the  defendants.  But  if  the  Court  should 
be  of  opinion  that  the  lessor  of  the  plaintiff  was  not  entitled  to  re- 
cover against  the  defendant  Manning,  the  verdict  taken  for  the  de- 
fendants was  to  stand.     *     *     * 

Lord  Ellenborough,  C.  J.,  ^  after  stating  the  facts — On  this  case, 
as  it  is  found  that  there  was  no  fraud  in  fact  in  the  conveyance  of  the 
12th  of  April,  1783,  the  only  point  for  the  consideration  of  the  Court 
is,  whether  a  voluntary  conveyance,  without  any  valuable  considera- 
tion, be  not  according  to  the  legal  construction  of  the  stat.  27  Eliz.  c. 
4,  fraudulent  against  a  subsequent  purchaser  for  a  valuable  considera- 
tion ;  or,  in  other  words,  whether  in  such  case  the  law  do  not  presume 
.fraud,  without  admitting  such  presumption  to  be  contradicted.     The 

2  Part  of  the  statement  is  omitted. 


Ch.  8)  PRIORITIES  815 

cases  in  which  the  construction  of  the  statute  of  the  27  of  Eliz.  has 
come  on  to  be  considered  have  been  numerous ;  and  in  several  of  those 
which  arose  nearest  the  time  of  passing  the  statute  the  Judges  seem  to 
liave  thought  that  a  voluntary  settlement  was  only  prima  facie  fraudu- 
lent against  a  purchaser,  according  to  the  language  of  the  Court  in  Sir 
Ralph  Bovy's  Case,  Ventris,  193 ;  where  it  is  said,  (Lord  Hale  being 
Chief  Justice)  "that  though  every  voluntary  conveyance  carries  an  evi- 
dence of  fraud ;  yet  it  is  not  upon  that  account  only  always  to  be  reck- 
oned fraudulent,  or  to  be  avoided  by  a  purchaser  for  a  valuable  con- 
sideration.'' And  in  Jenkins  v.  Kemishe  or  Kemis,  which  is  to  be  found 
in  Hardress,  398,  and  in  1  Lev.  150,  in  Lavender  v.  Blackstone,  in  2 
Lev.  146,  and  in  Garth  v.  IMois,  1  Keb.  486,  the  same  doctrine  is  dis- 
tinctly laid  down;  and  in  Style,  446,  it  is  stated  to  have  been  said 
on  a  trial  at  bar  (Lord  Rolle  being  then  Chief  Justice),  "that  a  voluntary 
conveyance  upon  consideration  of  natural  affection  hath  no  badge  of 
fraud,  unless  he  who  makes  it  be  indebted  at  the  time,  or  in  treaty 
for  the  sale  of  the  lands ;"  which  case  Chief  Baron  Gilbert  adopts,  and 
supports  by  reasoning  of  his  own,  in  his  Law  of  Evidence,  235,  p.  201, 
in  the  edition  of  1801.  And  in  addition  to  these  printed  cases,  Sir 
Robert  Eyre,  then  Chief  Justice  of  C.  P.,  according  to  a  MS.  note 
formerly  belonging  to  Mr.  Justice  Clive,  in  a  case  of  Standon  v.  Charl- 
wood,  tried  before  him  at  the  London  Sittings  after  Trinity  term,  1732, 
laid  it  down,  that  a  voluntary  settlement,  made  upon  marriage  by  Sir 
Richard  Anderson,  was  not  fraudulent  quia  voluntary ;  but  the  ques- 
tion was.  Whether  it  was  not  made  with  an  intent  to  defraud ;  and  the 
jury  so  found  it.  And  with  this  doctrine  other  of  the  cases  which  were 
cited  by  the  counsel  for  the  plaintiff  may  well  agree,  in  which  it  is 
stated,  "that  conveyances  were  decided,  on  evidence  given  at  the  bar, 
to  be  fraudulent;"  or,  "that  a  jury  were  directed  on  evidence;"  though 
"it  must  be  recollected,  that  these  cases  are  not  so  strong  as  those  I 
have  alluded  to,  as  they  are  not  inconsistent  with  the  possibility  of 
juries  having  been  directed,  what  ought  to  be  their  conclusion  in  point 
of  law,  from  the  facts  given  in  evidence,  if  the  jury  should  find  them 
to  be  true ;  for  fraud  and  covin  is  always  a  question  of  law ;  it  is  the 
judgment  of  law  on  facts  and  intents.  In  a  more  modern  case,  where 
the  question  was  upon  the  stat.  13  Eliz.,  that  of  Cadogan  v.  Kennett, 
in  Cowper,  434,  Lord  Mansfield  said,  obiter,  "the  stat.  27  Eliz.  c.  4, 
does  not  go  to  voluntary  conveyances,  merely  as  being  voluntary ;  but 
to  such  as  are  fraudulent."  And  in  a  late  case,  of  Doe  v.  Routledge, 
in  the  same  book,  p,  705,  where  the  question  arose  on  the  statute  now 
under  consideration.  Lord  Mansfield,  in  considering  one  point  in  the 
case,  whether  the  settlement  there,  under  all  its  circumstances,  were 
fraudulent  and  covinous,  stated,  "that  in  the  statute  there  was  not  a 
word  that  impeached  voluntary  settlements,  merely  as  being  voluntary, 
but  as  fraudulent  and  covinous ;"  and  noticed  the  3d  section,  which 
subjects  parties  to  such  fraudulent  grants,  who  should  attempt  to  de- 
fend them,  to  forfeiture  and  imprisonment,  as  if  such  practices  were 


S16  DERIVATIVE   TITLES  (Part  2 

a  crime ;  in  which  light  no  person  making  a  mere  voluntary  settlement, 
by  way  of  provision  for  his  family,  was  ever  considered  to  stand. 

This  section  furnishes  most  unquestionably  a  very  strong  argument 
in  favour  of  that  construction;  and  had  these  cases  not  been  opposed 
by  many  others  of  great  weight  and  authority,  there  would  have  been 
but  Httle  doubt  in  our  minds  as  to  this  construction  being  the  right  one ; 
but  we  have  to  deal  with  a  class  of  cases  full  as  numerous,  decided  by 
Judges  of  tlie  greatest  eminence,  which  have  given  this  statute  a  differ- 
ent construction,  and  have  held  that  a  conveyance  without  a  valuable 
consideration  is  by  the  statute  made  void,  as  fraudulent,  against  a  sub- 
sequent purchaser  for  such  consideration.  The  earliest  case  in  which 
this  is  distinctly  laid  down  is  Woodie's  Case,  cited  by  Tanfield  in  Col- 
ville  V.  Parker,  Cro.  Jac.  158,  as  far  back  as  East,  5th  of  Jac.  I,  where 
it  was  adjudged,  "that  an  assignment  of  a  lease  of  lands  by  one  quasi 
in  jointure  to  his  wife,  he  taking  the  profits,  and  afterwards  selling  it 
without  notice,  was  within  the  statute ;  though  not  made  in  trust  to  be 
revoked,  nor  with  any  clause  or  revocation ;  because  it  was  a  voluntary 
conveyance  at  first,  and  shall  be  intended  fraudulent  at  the  beginning." 
In  this  case,  though  the  person  making  the  conveyance  continued  in 
possession  and  took  the  profits,  it  will  be  observed  that  there  was  no 
badge  of  fraud ;  as  such  possession  accompanied  and  followed  the 
deed;  but  the  Judges  might  very  well  apprehend  that  subsequent  pur- 
chasers might  be  continually  defrauded  by  such  secret  conveyances,  if 
they  should  be  held  good ;  and  that  when  the  question  was  between 
one,  who  had  paid  a  valuable  consideration  for  an  estate,  and  another, 
who  had  given  nothing,  it  was  a  just  presumption  of  law,  that  such 
voluntary  conveyance,  founded  only  in  considerations  of  affection  and 
regard,  if  coupled  with  a  subsequent  sale,  was  meant  to  defraud  those, 
who  should  afterwards  become  purchasers  for  a  valuable  considera- 
tion; and  that  a  different  construction  would  have  so  narrowed  the' 
operation  of  the  statute  as  to  leave  the  persons  meant  to  be  protected 
by  it  subject  to  almost  all  the  mischiefs  intended  to  be  guarded  against; 
and  it  certainly  is  more  fit,  upon  the  whole,  that  a  voluntary  grantee 
should  be  disappointed,  than  that  a  fair  purchaser  should  be  defrauded. 
In  Prodgers  v.  Langham,  1  vSid.  133,  a  conveyance  made  by  a  man  in 
trust  for  his  daughter  till  marriage,  for  her  maintenance,  and  then  in 
trust  to  raise  a  portion  for  her,  was  held  to  be  a  voluntary  conveyance 
in  its  origin,  and  void  by  the  stat.  27  of  Eliz.  against  purchasers  for 
valuable  consideration;  this  was  in  the  15th  of  Car.  II.  In  White  v. 
Hussey,  Precedents  in  Chancery,  14,  in  the  beginning  of  King  Wil- 
liam's reign,  in  the  case  of  a  conveyance,  where  the  fraud,  if  any,  was 
only  from  its  being  voluntary,  the  commissioners  of  the  great  seal 
were  all  of  opinion  that  they  might  decree  a  conveyance  fraudulent 
merely  from  being  voluntary,  and  that,  without  any  trial  at  law.  In 
Gardiner  v.  Painter,  Cas.  temp.  King,  C.  P.  65,  Lord  King  said,  it 
could  never  be  a  question,  whether  a  voluntary  settlement  be  good 
against  purchasers.    This  was  in  the  year  1726;  and  in  the  next  year, 


Ch.  8)  PRIORITIES  817 

in  Tonkins  v.  Ennis,  1  Eq.  Cas.  Abr.  334,  a  voluntary  settlement  was 
considered  as  being  made  void  against  a  purchaser  by  the  stat.  27  of 
Eliz.  And  this  could  only  have  been  so  held  from  such  settlement 
being  in  point  of  law  considered  as  fraudulent.  In  White  v.  Sansom, 
3  Atk.  412,  though  Lord  Hardwicke  is  stated  to  have  said,  that  he 
had  heard  it  said  in  that  court,  that  there  are  reasonable  voluntary 
conveyances,  which  that  Court  will  not  interfere  to  disturb,  upon  the 
construction  of  these  statutes ;  yet,  according  to  the  same  case,  he  said, 
"he  hardly  knew  an  instance  where  a  voluntary  conveyance  had  not 
been  held  fraudulent  against  a  subsequent  purchaser."  And  in  Lord 
Townsend  v.  Windham,  2  Ves.  10,  he  said,  "on  the  27th  of  Eliz.  every 
voluntary  conveyance  made,  where  afterwards  there  is  a  subsequent 
conveyance  made  for  valuable  consideration;  though  no  fraud  in  that 
voluntary  conveyance,  nor  the  person  making  it  at  all  indebted ;  yet  the 
determinations  are,  that  such  mere  voluntary  conveyance  is  void  at 
law  by  the  subsequent  purchase  for  valuable  consideration."  In  Roe 
V.  ]\Iilton,  2  Wils.  356,  Lord  Ch.  J,  Wilmot  stated  the  question  to  be. 
Whether  there  were  a  good  and  valuable  consideration  to  support  the 
limitation  therein  to  Thomas  Hammerton,  the  father  of  the  lessor  of 
the  plaintiff;  or  whether  the  limitation  were  merely  voluntary  under 
the  Stat.  27  of  Eliz.,  and  bad  against  a  purchaser  for  valuable  consider- 
ation ?  And  the  Court  held  it  good ;  as  the  mother  giving  up  her  charge 
of  an  annuity  on  the  whole  of  the  estate,  and  taking  it  on  a  part,  was 
considered  as  a  valuable  consideration.  And  Lord  C.  J.  De  Grey,  in 
Goodright  v.  Moses,  in  2  Sir  W.  Black.  Rep.  1019,  laid  it  down,  "that 
the  deed  in  question  was  only  a  voluntary  conveyance  within  the 
true  meaning  of  the  stat.  27th  of  Eliz. ;  being  founded  only  on  a  good, 
and  not  on  a  valuable  consideration;  and  therefore  could  not  be  set 
up  against  a  bona  fide  purchaser." 

And  the  observation  on  this  case  made  by  the  counsel  for  the  defend- 
ant, that  it  seemed  that  Lord  C.  J.  De  Grey  had  been  misled  by  a  case 
in  2  Vern.  326,  which  he  referred  to ;  and  which  was  said  not  to  have 
been  decided,  and  on  which  he  was  supposed  to  have  relied ;  does  not 
weaken  the  authority  of  the  case  in  Blackstone;  for  Lord  C.  J.  De 
Grey  referred  to  it,  not  to  support  the  opinion  of  the  Court  on  the 
point  now  before  us;  but  to  shew  that  a  lessee  for  years  was  a  pur- 
chaser for  a  valuable  consideration.  Lord  Mansfield  himself  (whose 
opinion  in  Doe  v.  Routledge,  and  whose  dictum  in  Cadogan  v.  Kennett, 
have  been  much  relied  on,)  held  in  the  case  of  Chapman  v.  Emery, 
Cowp.  280,  that  a  voluntary  conveyance  after  marriage  by  a  man  on 
his  wife  and  children  was  void  by  the  stat.  27th  of  Eliz.  against  a  sub- 
sequent mortgagee,  whom  he  held  to  be  a  purchaser.  And  with  re- 
spect to  the  case  of  Doe  v.  Routledge,  it  may  be  observed  that  Lord 
Mansfield  seems  to  have  supported  his  opinion  by  cases,  which  were 
not  considered  as  cases  of  voluntary  settlements;  but  as  cases  where 
the  settlements  had  for  their  foundation  valuable  considerations ;  such 
Aig.Prop. — 52 


818  DERIVATIVE  TITLES  (Part  2 

was  the  case  of  Newstead  and  Searles,  in  1  Atk.  268,  which  he  men- 
tioned by  name;  for  Lord  Hardwicke  in  that  case  stated  "the  question 
to  be,  Whether  the  articles  of  the  30th  of  April,  1709,  were  for  a  val- 
uable consideration,  and  binding,  or  ought  to  be  considered  as  volun- 
tary and  fraudulent,  with  respect  to  subsequent  creditors  and  purchas- 
ers?" And  afterwards  he  said,  "I  think  the  settlement  no  voluntary 
agreement,  but  a  binding  one;  the  statutes  of  the  13th  and  27th  of 
Eliz.  that  make  conveyances  fraudulent,  are  voluntary  conveyances 
made  against  purchasers  for  a  valuable  consideration,  or  bona  fidp 
creditors ;  but  it  would  be  difficult  to  shew  that  such  a  limitation,  as  in 
the  present  case,  has  been  held  fraudulent  and  void  against  subsequent 
purchasers  and  creditors.  The  present  is  a  stronger  case ;  for  here  are 
reciprocal  considerations  both  on  the  part  of  the  husband  and  wife,  by 
the  provisions  under  the  articles  for  the  second  marriage." 

And  I  believe,  if  it  were  necessary  to  go  into  the  examination,  it 
would  be  found  that  in  most,  if  not  in  all  of  the  cases  cited  by  the  de- 
fendant, there  were  reciprocal  considerations ;  some  benefit  acquired 
by  the  persons  making  the  settlement,  which  might  fall  under  the  de- 
nomination of  a  valuable  consideration ;  though  perhaps  other  per?ons 
derived  a  benefit  from  the  settlement,  who  were  not  the  principal  ob- 
jects of  it.  As  in  Jenkins  v.  Keymys,  where  the  consideration  of  a 
marriage  and  a  marriage  portion  was  held  to  run  through  all  the  es- 
tates raised  by  the  settlement  on  the  marriage ;  though  the  marriage  was 
not  concerned  in  them.  And  it  must  be  further  recollected,  with  re- 
spect to  Doe  V.  Rotitledge,  that  upon  the  strength  of  the  voluntary  set- 
tlement in  that  case  a  marriage  was  had ;  which  was  noticed  by  Lord 
Mansfield.  And  according  to  the  case  of  Prodgers  v.  Langham,  1  Sid. 
133,  a  voluntary  conveyance,  fraudulent  against  a  subsequent  purchas- 
er, was  held  to  be  made  good  by  a  subsequent  marriage.  And  it  will  be 
further  recollected,  that  in  Doe  v.  Routledge  there  was  no  bona  fide 
purchaser.  Subsequently  to  the  case  of  Chapman  v.  Emery,  the  cases 
of  Evelyn  v.  Templar,  2  Bro,  Chan.  Cas.  148,  and  Doe  ex  dem.  Bothell 
v.  Martyr,  1  Bos.  &  Pull.  New  Reports,  332,  have  been  determined ;  in 
the  last  of  which  it  was  laid  down,  "that  it  cannot  now  be  held  that  a 
prior  voluntary  conveyance  shall  defeat  a  conveyance  to  a  purchaser 
for  a  valuable  consideration,  without  overturning  the  settled  and  de- 
cided law."  And  in  the  first  of  them  (i.  e.)  Evelyn  v.  Templar,  it  was 
said  by  Lord  Thurlow,  that  so  many  estates  stand  upon  the  rule,  that 
it  cannot  be  shaken.  And  so  late  as  Mich,  term,  1804,  in  the  case  of 
Doe  d.  Lewis  v.  Hopkins,  the  Court  of  Exchequer  held ;  where  after 
marriage  a  man  covenanted  to  stand  seised  of  an  estate  to  the  use  of 
himself  for  hfe,  remainder  to  the  use  of  his  wife  for  life,  remainder 
to  the  heirs  of  the  body  of  the  wife  begotten  by  the  husband ;  that  such 
settlement  was  void,  as  being  voluntary  against  a  lessee  of  the  husband 
for  31  years ;  the  son  of  the  settlor  claiming  the  estate  after  his  father's 
death  against  the  lessee.  To  the  authority  of  these  cases  may  be  added 
the  case  of  Nunn  v.  Willsmore,  8  Term  Rep.  528,  where  Lord  Kenyon 


Ch.  8)  PRIORITIES  819 

said,  "if  this  deed  were  either  actually  fraudulent,  or  voluntary,  from 
whence  the  law  infers  fraud,  the  consequence  insisted  on  by  the  plain- 
tiff would  follow  ;  and  I  admit  that  if  this  deed  were  a  voluntary  deed, 
the  law  says  it  is  fraudulent."  Thus  stand  the  authorities  on  both 
sides  of  the  question ;  and  the  weight,  number,  and  uniformity  of  those 
which  establish  the  point  contended  for  on  behalf  of  the  plaintiff",  do 
in  our  opinion  very  much  preponderate;  and  as  many  estates  depend 
upon  the  rule,  it  ought  not,  we  conceive,  to  be  shaken.  It  appears  from 
the  MS.  note  I  have  cited,  formerly  belonging  to  Mr.  Just.  Clive,  that 
Mr,  Horsman,  in  the  year  1713,  advised  the  making  a  mortgage  of  the 
estate  settled  in  strict  settlement  by  Sir  R.  Anderson  after  his  mar- 
riage ;  thinking  it  voluntary  and  fraudulent  as  against  a  purchaser,  and 
the  like  advice  as  that  which  he  gave  nearly  a  century  ago,  probably 
had  been  given  before ;  and  that  it  has  been  given  since,  and  acted  on, 
we  cannot  doubt ;  as  Lord  Thurlow  was  not  likely  to  have  expressed 
himself,  as  he  did  in  Evelyn  v.  Templar,  unless  he  had  known  that 
such  had  frequently  been  the  case.  Feeling  ourselves  pressed  with 
these  authorities  and  considerations,  we  think  ourselves  bound  to  give 
judgment  for  the  plaintiff.  Much  property  has,  no  doubt,  been  pur- 
chased, and  many  conveyances  settled  upon  the  ground  of  its  having 
been  so  repeatedly  held,  that  a  voluntary  conveyance  is  fraudulent,  as 
such,  within  the  stat.  27th  of  Eliz. ;  and  it  is  no  new  thing  for  the 
Court  to  hold  itself  concluded  in  matters  respecting  real  property  by 
former  decision  upon  questions,  in  respect  of  which,  if  it  were  res 
integra,  they  probably  would  have  come  to  very  different  conclusions. 
And  if  the  adhering  to  such  determinations  is  likely  to  be  attended  with 
inconvenience,  it  is  a  matter  fit  to  be  remedied  by  the  Legislature, 
which  is  able  to  prevent  the  mischief  in  future,  and  to  obviate  all  the 
inconvenient  consequences  which  are  likely  to  result  from  it,  as  to 
purchases  already  made.  And  we  cannot  but  say,  as  at  present  advised, 
and  considering  the  construction  put  on  the  statute,  that  it  would  have 
been  better  if  the  statute  had  avoided  conveyances  only  against  pur- 
chasers for  a  valuable  consideration  without  notice  of  the  prior  convey- 
ance. Our  opinion  being  with  the  plaintiff,  the  consequence  is,  that 
there  must  either  be  a  new  trial,  or  an  issue  between  the  plaintiff  and 
the  defendant  Goom  to  try  the  validity  of  his  lease.^ 

3  A.,  heinp  .seised  in  fee,  covenanted  to  stand  seised  to  use  of  himself  for 
life,  remainder  ultimately  to  use  of  B.  in  fee.  A.  died,  leaving  a  will  hy  which 
the  same  premises  were  devised  in  fee  to  C.  who  ccmveyed  them  to  X.,  a  pur- 
chaser for  value.  In  ejectment  by  B.  against  X.,  the  defense  was  on  the  stat- 
ute 27  Eliz.  Held,  the  statute  did  not  avoid  the  deed  to  B.  Doe  d.  Newman 
V.  Rnsham,  17  Q.  15.  72:?  (1852). 

In  Tarry  v.  Carwarden.  2  Dick.  544  (177S),  it  was  held  that  equity  at  the 
suit  of  a"  purchaser  for  value,  would  decree  a  specific  performance  of  a  con- 
tract of  sale  made  after  a  voluntary  conveyance  of  the  same  premises.  But 
where  the  suit  for  specific  performance  is  by  the  vendor,  held  othenvise  in 
Smith  V.  Garland.  2  Mer.  122  (1817).  See,  also.  Clarke  v.  Willott,  L.  R.  7  Exch. 
313  (1872),  where  the  vendee,  who  !iad  contracted  to  purchase  the  premises  aft- 
er the  vendor  had  made  a  voluntary  conveyance  thereof,  sued  to  recover  back 
deposits  which  he  had  made. 


820  DERIVATIVE  TITLES  (Part  2 

COOKE  V.  KELL. 

(Court  of  Appeals  of  Maryland,  1858.     13  lid.  469.) 

Ejectment  for  a  lot  of  ground,  forty-one  feet  front  and  one  hundred 
and  fifty-nine  deep,  on  York  street,  in  the  city  of  Baltimore,  being 
lot  No.  17,  and  part  of  "Todd's  Range,"  brought  on  the  29th  of  Au- 
gust, 1850,  by  the  appellant  against  the  appellees.     Plea,  Non  cul. 

The  plaintiff,  on  the  whole  evidence,  asked  an  instruction  to  the 
jury  in  substance  as  follows: 

That  by  the  deed  of  the  14th  of  May,  1792,  Joseph  Bankson  con- 
veyed to  grantees  therein  named,  the  property  therein  described,  in  fee, 
subject  to  the  Hfe  estate  in  and  to  the  same,  of  the  grantor  and  his 
wife  and  of  the  survivor  of  them,  and  if  the  jury  find  from  the  evi- 
dence, that  said  Joseph  Bankson  died  in  1806,  and  his  widow  in  1843, 
that  the  right  of  action  to  recover  possession  of  said  lot  of  ground, 
thereupon  first  accrued  to  the  grantees  in  said  deed  named,  and  their 
representatives,  and  that  the  deed  of  1795,  from  said  Bankson  to  Dif- 
fenderffer,  was  not  sufficient  to  avoid  said  conveyance  of  1792,  al- 
though they  may  find,  that  the  said  deed  of  1795,  was  for  full  value, 
and  that  of  1792,  voluntary,  and  for  no  other  consideration  than  that 
stated  therein,  provided  the  jury  shall  further  find,  that  said  last  men- 
tioned deed  was  duly  acknowledged  and  recorded  in  the  records  of 
Baltimore  county  court,  on  the  14th  of  May,  1792. 

The  defendants,  on  the  same  evidence,  asked  two  instructions  to 
the  jury,  in  substance  as  follows: 

1st.  If  the  jury  find,  that  the  deed  from  Joseph  Bankson,  of  the 
14th  of  May,  1792,  was  a  voluntary  conveyance,  and  for  no  other  con- 
sideration than  that  stated  in  it,  that  then  the  sale  by  him  in  1795,  of 
the  same  property  to  Diffenderffer,  and  the  execution  of  the  deed 
therefor  to  Diffenderft'er,  of  the  17th  of  February,  1795,  if  the  jury 
shall  find  such  sale  and  deed,  and  that  the  same  was  for  a  valuable 
consideration,  and  -without  actual  notice  by  Diffenderffer  of  said  deed 
of  the  14th  of  May,  1792,  is  presumptive  evidence,  that  said  deed  of 
the  14th  of  May,  1792,  was  fraudulent  and  void. 

2nd.  If  the  jury  shall  find,  that  the  said  deed  of  the  14th  of  May, 
1792,  was  only  for  the  consideration  therein  stated,  and  shall  also 
find  that  the  grantor,  Bankson,  had  antecedently  thereto  conveyed 
away  all  his  other  property,  and  was  at  the  time  of  the  execution  of 
said  deed  of  the  14th  of  May,  1792,  the  owner  and  possessor  of  no 
other  property,  and  if  they  shall  find,  that  his  wife,  who  had  a  life 
estate  under  that  deed,  joined  by  a  relinquishment  of  dower  in  the  deed 
to  Diffenderffer,  of  the  17th  of  February,  1795,  with  knowledge  that 
the  same  conveyed  the  title  to  the  grantee,  and  that  she  lived  till  1843, 
and  that  the  three  children,  the  grantees  in  said  deed  of  1792,  were 
then  infants  and  unable  to  maintain  themselves,  and  that  said  Bank- 
son  never  had  any  property  afterwards,  other  than  the  purchase  money 


Ch.  8)  PRIORITIES  821 

received  from  Diffenderffer,  from  the  said  sale  to  him  of  said  lot,  or 
what  he  may  have  procured  by  means  thereof,  and  that  neither  said 
Bankson,  nor  his  wife,  or  any  one  else,  ever  communicated  to  Diffen- 
derffer the  existence  of  said  deed  of  1792,  and  that  neither  he  (Diffen- 
derffer) nor  Thomas  Kell,  under  whom  the  defendants  claim,  ever 
had  actual  knowledge  of  the  same  until  long  after  the  deed  to  said  Kell 
by  Henry  Dorsey,  of  1833,  offered  in  evidence  by  the  defendants,  (ii 
the  jury  find  such  deed,  and  that  the  same  was  for  full  value,)  and 
the  jury  shall  also  find,  that  said  Diffenderffer,  and  those  claiming  un- 
der him,  held  said  property  from  1795,  to  the  present  time,  adversarily 
under  said  deed  to  Diffenderffer  of  1795,  and  that  said  Cooke  never 
did  set  up  title  to  the  same  under  the  said  deed  of  1792,  that  then  the 
jury  may  find  that  said  deed  of  the  14th  of  May,  1792,  was  not  bona 
fide  but  fraudulent  and  void. 

The  court  (Frick,  J.)  refused  the  plaintiff's  prayer,  and  granted  those 
of  the  defendant.  To  this  ruling  the  plaintiff  excepted,  and  the  ver- 
dict and  judgment  being  in  favor  of  the  defendant,  appealed. 

Le  Grand,  C.  J.  This  case  has  been  discussed  at  the  bar  with  great 
fullness  of  illustration,  and  the  views  of  the  respective  counsel,  pre- 
sented with  clearness  and  cogency  of  reasoning. 

To  our  minds — looking  to  past  and  distinctly  recognized  adjudica- 
tions— the  questions  we  are  called  upon  to  decide  are  confined  within 
a  narrow  space.  The  action  is  one  of  ejectment,  and  the  principal 
facts  of  the  case  may  be  thus  stated : 

On  the  14th  day  of  May,  1792,  a  certain  Joseph  Bankson,  by  deed, 
conveyed  (reserving  to  himself  and  wife,  and  to  the  survivor  of  them, 
a  life  estate  therein)  a  certain  lot  of  ground  and  the  improvements 
thereon,  to  his  three  children,  Harriet  Giles  Bankson,  Joseph  Bank- 
son  and  Elizabeth  Bankson,  their  heirs  and  assigns  forever,  as  tenants 
in  common.  The  consideration  for  this  conveyance  was  natural  love 
and  affection,  and  the  nominal  sum  of  five  shillings.  On  the  17th  day 
of  February,  1795,  the  aforesaid  Joseph  Bankson  conveyed  the  same 
property  to  Daniel  Diffenderffer,  for  a  valuable  consideration,  the  wife 
of  Bankson  releasing  her  dower.  Diffenderffer  immediately  took  pos- 
session, and  remained  in  it  until  his  death  in  1809  or  1810,  devising 
the  property  to  his  wife,  who  continued  in  it  until  her  death,  which 
occurred  in  1832  or  1833,  after  which,  it  was  sold  by  a  trustee  ap- 
pointed for  the  purpose,  and  the  title  of  Diffenderffer  and  wife,  by 
legally  executed  and  acknowledged  mesne  conveyances,  and  lastly,  by 
a  deed  from  Henry  Dorsey,  became  vested  in  Thomas  Kell,  who  paid 
for  it  $7000,  and  who  remained  in  possession  of  it  until  his  death  in 
1846.  The  lessor  of  the  plaintiff  claims  title  under  the  voluntary  deed 
of  1792,  and  the  defendants  under  the  deed  of  1795,  for  a  valuable 
consideration  to  Diffenderffer,  and  through  the  intermediate  convey- 
ances down  to  Thomas  Kell,  and  through  and  from  him  down  to 
themselves.  The  deeds  of  1792  and  1795,  were  both  placed  on  record 
in  the  proper  office  on  the  days  of  their  dates.    The  widow  of  Joseph 


822  DERIVATIVE  TITLES  (Part  2 

Bankson  survived  her  husband  until  1843.  Elizabeth  Cankson,  (who 
intermarried  with  a  certain  John  S.  Cooke,  since  dead,)  is  the  only 
child  of  the  grantor,  being  a  grantee  in  the  deed  of  1792,  now  living, 
the  other  two  children  having  died  without  leaving  issue.  There  was 
testimony  given  on  the  part  of  the  defendants,  for  the  purpose  of 
showing  that  the  elder  Bankson  was  apparently  in  needy  circumstances, 
and  that,  at  the  time  of  the  execution  of  the  deed  in  1795  to  Diffen- 
derffer,  it  did  not  appear,  from  the  public  records,  he  had  any  other 
property  than  that  mentioned  in  that  conveyance,  and  also,  that  until 
a  very  short  time  before  the  institution  of  this  action,  no  claim  on 
the  part  of  the  grantees  in  the  deed  of  1792,  was  heard  of  by  the  wit- 
nesses. This  is  substantially  the  evidence  in  the  cause.  The  plaintiff 
offered  one  prayer  to  the  court,  which  was  rejected,  and  tlie  defend- 
ants two,  which  were  granted. 

The  defendants  contend,  that  under  a  proper  construction  of  the 
statute  of  27th  Elizabeth,  entitled,  "An  act  against  covinous  and  fraud- 
ulent conveyances,"  and  the  circumstances  of  this  case,  the  deed  of 
1792,  under  which  the  lessor  of  the  plaintiff  claims  title,  is  void  and 
of  no  avail  as  against  the  defendants,  who  claim  under  the  deed  of 
1795,  which  was  for  valuable  consideration;  that  as  to  them,  it  is  void 
and  fraudulent,  there  being  no  evidence  of  notice  of  the  deed  of  1792, 
and  that  it  was  executed  with  a  fraudulent  intent  in  fact. 

On  the  other  hand  the  plaintiff  insists,  that  neither  in  law,  nor  in 
fact,  was  there  any  fraud  in  the  execution  of  the  deed  of  1792,  and 
tliat  it  is  all  sufficient  to  entitle  her  to  recover  in  this  action. 

The  first  inquiry  for  our  determination  is:  \Vhat  is  the  received 
and  binding  interpretation  of  the  statute  of  27th  Elizabeth,  ch.  4,  in 
this  State?  On  this,  principally  depends,  the  decision  of  this  case. 
Until  the  year  1807,  when  was  decided  the  case  of  Doe  v.  Manning,  9 
East,  59,  there  was  much  contrariety  of  opinion  in  England — and 
doubtless,  also  in  this  country — as  to  the  true  meaning  of 'the  statute; 
since  then,  however,  the  opinion  of  Lord  Ellenborough,  has,  in  Eng- 
land, put  to  rest  all  judicial  doubts  on  the  subject.  Were  that  o[)in- 
ion  law  in  this  State,  there  would  be  an  end  to  the  plaintift"'s  title  un- 
der the  voluntary  deed  of  1792.  But  it  is  not  the  law.  In  the  case 
of  Warren  and  Others'  Lessee  v.  Richardson  and  wife  et  al,  decided 
in  the  year  1837,  the  Court  of  Appeals  relied  upon  and  adopted  the 
decision  of  the  Supreme  Court  of  the  United  States,  in  the  case  of 
Cathcart  v.  Robinson,  5  Pet.  280,  8  L.  Ed.  120,  and  in  the  case  of  the 
Mayor  and  City  Council  of  Balto.  v.  Williams,  6  Md.  235,  this  court 
again  construed  the  statute  of  27th  Elizabeth,  and  again  adopted  the 
construction  placed  upon  it  by  the  Supreme  Court.  Fully  concurring 
in  the  correctness  of  those  decisions,  we  are  relieved  from  all  inquiry 
as  to  what  may  be  the  law  elsewhere.  The  principal  difference  be- 
tween the  doctrine  of  Doe  v.  Manning,  and  that  of  Cathcart  v.  Robin- 
son, consists  in  this:  By  the  former,  and  mere  execution  of  a  volun- 
tary deed  raises  the  presumption — which  cannot  be  rebutted — of  fraud 


Ch.  8)  PRIORITIES  823 

as  against  subsequent  purchasers  for  value,  whilst  by  the  other,  the 
rule  is,  in  the  language  of  Chief  Justice  Marshall:  "A  subsequent  sale 
without  notice,  by  a  person  who  had  made  a  settlement  not  on  valua- 
ble consideration,  was  presumptive  evidence  of  fraud,  which  threw 
on  those  claiming  under  such  settlement,  the  burthen  of  proving  that 
it  was  made  bona  fide."  This  quotation  from  the  opinion  of  Chief 
Justice  Marshall,  contains,  to  the  fullest  extent  contended  for  by  the^ 
counsel  of  the  defendants,  their  interpretation  of  the  statute.  It  does 
not  assert  the  doctrine,  in  any  sense,  that  a  voluntary  deed  is  void 
simply  because  it  is  voluntary;  it  merely — as  against  subsequent 
purchasers  for  value — makes  it  presumptive  evidence  of  fraud,  where 
there  has  been  no  notice  to  subsequent  purchasers,  and  casts,  in  such 
a  case,  upon  those  claiming  under  it,  the  burthen  of  disproving  the 
presumption.  When  the  subsequent  purchaser  has  notice,  no  such  pre- 
sumption arises,  and  as  was  said  in  6  Md.  265:  "To  hold  that,  with 
notice  to  the  purchaser,  the  settlement  is  subject  to  the  presumption 
of  fraud,  simply  in  consequence  of  the  subsequent  conveyance  for  val- 
ue, we  think  is  not  required  by  the  language  of  the  statute,  and  is  in- 
consistent with  correct  moral  feeling." 

This  being  so,  the  question  then  is:  Had  Diffenderffer  notice  of  the 
voluntary  deed  of  1792?  There  is  no  evidence  in  the  record  showing 
that  he  had,  in  point  of  fact,  notice  of  its  existence ;  on  that  head  there 
is  perfect  silence.  Whether  or  not,  then,  he  had  such  notice  as  will 
bind  him,  and  those  claiming  under  him,  must  depend  upon  the  ef- 
fect of  our  registration  laws.  The  deed  of  1792  was  placed  on  rec- 
ord the  day  of  its  execution,  and,  of  course,  open  to  inspection  in  1795, 
when  the  second  deed  was  made. 

In  the  case  of  Warren  v.  Richardson,  already  referred  to,  decided 
by  the  late  Court  of  Appeals,  and  reported  in  6  Md.  272,  the  Reporter, 
in  a  note,  has  drawn  the  inference  from  the  decision  of  the  court  upon 
the  prayers  offered,  and  from  the  facts  appearing  in  the  record  of 
that  case,  and  from  the  fact,  that  the  Court  of  Appeals,  upon  the 
reversal  of  the  judgment  awarded  a  procedendo,  "that  the  notice  which 
will  bind  the  subsequent  purchaser,  need  not  be  actual,  but  that  con- 
structive notice  furnished  by  the  recording  of  the  voluntary  deed  un- 
der our  registry  laws,  is  sufficient."  In  this,  we  think,  he  was  cor- 
rect. There  was  no  evidence,  that  the  subsequent  purchasers  in  that 
case  had  any  actual  notice  of  the  prior  voluntary  deed.-  If,  then,  the 
fact  of  the  registry  of  the  deed  did  not  affect  them  with  notice,  we 
are  unable  to  perceive  for  what  purpose  a  new  trial  was  directed  un- 
der a  procedendo?  We  think  the  court  could  not  otherwise  than 
have  decided,  that  the  registry  of  the  deed  affected  the  subsequent 
purchasers  with  notice,  and  thereby  shifted  the  onus  upon  them  to 
show,  if  they  could,  that  the  deed  was  fraudulent  in  fact,  and  for  the 
purpose  of  enabling  them  to  do  this,  ordered  a  new  trial.  If  the  regis- 
try of  the  deed  did  not  have,  in  the  opinion  of  the  court,  this  effect, 
then,  the  defendants  stood  in  the  attitude  of  subsequent  purchasers 


824  DERIVATIVE  TITLES  (Part  2 

for  value,  without  notice,  and  the  question  of  law  raised  by  the  pray- 
ers, became  a  mere  abstract  proposition,  the  decision  of  which,  either 
way,  would  have  been  of  no  avail  to  the  voluntary  grantees  under  the 
deed. 

But,  be  this  as  it  may,  the  interpretation  we  have  sanctioned  is  fully 
sustained  by  express  decisions.  In  the  case  of  Beal  v.  Warren  and 
another,  2  Gray,  450,  the  Supreme  Court  of  Massachusetts,  when  speak- 
ing of  a  voluntary  deed,  under  the  statute  of  27th  Elizabeth,  say :  "No 
question  is  made  whether  the  second  grantee  had  actual  notice  of  the 
first  conveyance,  though,  from  the  relation  of  the  parties,  and  from 
the  fact,  that  there  was  no  attempt  to  show  actual  fraud,  such  notice 
may  reasonably  be  inferred.  Nor  would  this  be,  in  the  absence  of 
fraud,  material ;  for  the  registration  of  the  conveyance  would  be  con- 
structive notice,  and  sufficient  notice,  to  all  subsequent  purchasers." 
In  the  case  of  O'Neill  v.  Cole,  4  Md.  123,  the  court,  referring  to  a 
deed,  executed  by  a  female,  a  short  time  before  her  marriage,  and 
which  was  contested  by  her  surviving  husband  after  her  death,  remark 
that,  "If  the  appellant,  (the  husband,)  had  reason  to  suppose  that  his 
late  wife,  before  their  marriage,  had  been  imposed  upon,  or  induced 
to  execute  a  conveyance  of  which  she  did  not  know  the  contents  and 
meaning,  it  was  quite  proper  for  him  to  resist  the  attempt  of  the  ap- 
pellee to  possess  himself  of  the  property.  In  this  we  think  he  has 
failed;  and  if,  failing  in  this,  he  seeks  to  make  out  a  case  of  fraud 
in  law  upon  his  marital  rights,  there  is  no  reason  why  he  should  not 
be  bound  by  the  notice,  which  our  recording  acts  impute  to  others 
when  seeking  to  vacate  conveyances,  or  when  claiming  against  tliem." 
In  the  same  case,  the  Chancellor  had  previously  said,  3  Md.  Ch.  174, 
that,  "It  is  the  settled  American  doctrine,  that  the  registration  of  a 
conveyance,  operates  as  constructive  notice  upon  all  subsequent  pur- 
chasers of  any  estate  legal  or  equitable  in  the  same  property."  And 
as  was  said  by  a  majority  of  the  court,  in  the  case  of  Williams  et  al. 
V.  Banks  et  al.,  11  Md.  250:  "It  seems  to  us  a  contradiction  in  terms, 
to  say,  that  a  person  is  defrauded  by  an  instrument,  when  he  deals 
with  a  perfect  knowledge  of  its  existence  and  of  its  effect.  If  our 
registration  laws  have  any  operation,  they  certainly  do,  as  they  were 
designed,  give  notice  to  all  the  world,  so  that  there  may  be  no  deceit 
practiced  upon  any  one.  If  registration  laws  do  not  give  notice  to 
the  community  which  will  bind  it,  then  they  are  of  no  use  whatever, 
for,  witliout  registration,  deeds  would  be  binding  inter  partes."  This 
language  was  applied  as  well  to  deeds  under  the  13th,  as  to  those  un- 
der the  27th  of  Elizabeth. 

These  authorities  are  all  sufficient,  in  this  state  at  least,  to  show  that 
registration  is  constructive  notice,  and  all  sufficient  to  bind  subsequent 
purchasers  in  the  absence  of  actual  fraud. 

The  prayer  of  the  plaintiff  was  defective,  only  in  the  omission,  to 
require  the  jury  to  find  the  existence  of  the  deed  of  1792. 

The  first  prayer  of  the  defendants  was  erroneous,  in  ignoring  the 


Ch.  8)  PRIORITIES  825 

effect  of  the  registration,  and  requiring  actual  notice.  We  do  not  think 
the  facts,  if  found,  enumerated  in  their  second  prayer,  sufficient  to  have 
authorized  the  jury  to  find  the  deed  of  1792  was  not  bona  fide,  but 
fraudulent  and  void.  All  those  facts  might  be  found,  and,  neverthe- 
less, the  deed  might  be  bona  fide  and  valid.  There  must  be  some  point- 
ed evidence  to  establish  fraud  in  fact.  We  affirm  the  court  below  in 
its  rejection  of  the  plaintiff's  prayer,  and  reverse  its  decision  granting 
the  prayers  of  the  defendants. 

If  left  to  conjecture,  we  may  imagine,  that  the  case  was  a  hard  one 
on  Diffenderffer,  as  it  was  undoubtedly  on  Kell,  who  paid  a  full  price ; 
but  it  may,  also,  on  the  other  side,  be  supposed,  that  Diffenderffer  had 
actual  as  well  as  constructive  notice  of  the  deed  of  1792,  when  he 
accepted  that  of  1795,  but,  that  relying  upon  what  may  be  very  rea- 
sonably supposed,  at  that  time,  to  have  been  the  opinion  of  the  profes- 
sion, as  to  the  true  construction  of  the  statute  of  Elizabeth,  he  be- 
lieved it  competent  to  the  elder  Bankson  to  give  him  a  good  title.  But 
with  surmises  we  have  nothing  to  do.  Unless  the  defendants  can 
establish  fraud  in  fact,  the  registration  of  the  deed  of  1792,  concludes 
them  in  this  action. 

Judgment  reversed  and  procedendo  awarded.* 

4  The  matter  of  conveyances  in  fraud  of  creditors  is  not  considered  here.  It 
seems  more  appropriately  considered  in  the  course  on  Bankruptcy. 

PuRCHASEK  FOR  VALUE. — It  is  Well  Settled  that  to  bring  a  conveyance  under 
the  protection  of  the  statute  of  27  Eliz.  c.  4,  it  is  nece.ssary  that  it  be  made 
upon  a  valuable  consideration.  Upton  v.  Basset,  Cro.  Eliz.  445  (1596).  The 
assumption  of  liability  on  the  covenants  in  a  lease  makes  one  a  purchaser  for 
value,  at  least  under  the  saving  clause.  Price  v.  Jenkins,  5  Ch.  D.  619  (1877). 
But  see  Lee  v.  Mathews,  6  L.  R.  Ir.  530  (ISSO).  Cf.  Townsend  v.  Toker,  L.  R. 
1  Ch.  446  (1S66) ;  Kosher  v.  Williams,  L.  R.  20  Eq.  210  (1875).  But  a  consid- 
eration which  is  merely  nominal  or  colorable,  such  as  "5s.  and  other  valuable 
considerations,"  is  not  sufficient.  Walker  v.  Burrows.  1  Atk.  94  (1745).  See, 
also,  Shurmur  v.  Sedgwick,  24  Ch.  D.  597  (1883).  The  payment  of  $50  for  con- 
veying an  estate  worth  .$25,000  does  not  make  one  a  purchaser  for  value.  Ful- 
lenwider  v.  Roberts,  20  N.  C.  420  (1839).  But  see  Boyer  v.  Tucker,  70  Mo.  457 
(1879). 

Marriage  is.  a  valuable  consideration.  Prodgers  v.  Laughan,  1.  Sid.  133  (1663) ; 
Sterry  v.  Arden,  1  Johns.  Ch.  (N.  Y.)  62,  261  (1814).  But  only  those  coming 
within  the  marriage  consideration  are  protected.  Johnson  v.  Legard,  6  M.  & 
S.  60  (1817) ;  Price  v.  Jenkins,  4  Ch.  D.  483  (1876) ;  IMackie  v.  Herbertson,  9 
App.  Cas.  303  (1884) ;  In  re  Cameron  &  Wells,  37  Ch.  D.  32  (1887) ;  De  Mestre 
v.  West,  [1891]  A.  C.  264.  But  see  Newstead  v.  Searles,  1  Atk,  265  (1737) ; 
Clarke  v.  Wright,  6  H.  &  N.  849  (1861) ;  Gale  v.  Gale,  6  Ch.  D.  144  (1877) ;  Jen- 
kins V.  Keymes.  1  Lev.  237  (1668) ;  Clayton  v.  Wilton,  6  M.  &  S.  67  (1817).  It 
has  been  held  that  one  taking  a  conveyance  to  secure  antecedent  debts  is  not 
a  purchaser  for  value.  Manhattan  Co.  v.  Evertson,  6  Paige  (N.  Y.)  457  (1837). 
See,  also,  McKay  v.  Gilliam,  65  N.  C.  130  (1871).  So  one  who  has  given  a  mort- 
gage to  secure  the  purchase  price,  but  has  in  fact  paid  nothing,  is  not  protect- 
ed. Alden  v.  Trubee,  44  Conn.  455  (1877).  A  conveyance  voidable  when  en- 
tered into  for  want  of  consideration  may  he  made  valid  by  matter  ex  post  fac- 
to.   Prodgers  v.  Laughan  and  Sterry  v.  Arden,  supra. 

A  conveyance  to  charitable  uses  has  never  been  regarded  as  within  the  stat- 
ute.    Ramsay  v.  Gilchrist,  [1892]  L.  R.  A.  C.  412. 


826  ^  DERIVATIVE  TITLES  (Part  2 

SECTION  2.— RECORDING 
I.  In  England 


ST.  7  ANNE,  c.  20  (170S). 

Whereas  by  the  different  and  secret  ways  of  conveying  lands,  teine- 
menis,  and  hereditaments,  such  as  are  ill  disposed  have  it  in  their 
power  to  commit  frauds,  and  frequently  do  so,  by  means  whereof  sev- 
eral persons  (who  through  many  years  industry  in  their  trades  and 
employments,  and  by  great  frugality,  have  been  enabled  to  purchase 
lands,  or  to  lend  moneys  on  land  security)  have  been  undone  in  their 
purchases  and  mortgages,  by  prior  and  secret  conveyances,  and  fraud- 
ulent encumbrances,  and  not  only  themselves,  but  their  whole  fam- 
ilies thereby  utterly  ruined :  for  remedy  whereof,  may  it  please  your 
most  excellent  Majesty  (at  the  humble  request  of  the  justices  of  the 
peace,  gentlemen,  and  freeholders  of  the  county  of  Middlesex)  that  it 
may  be  enacted,  and  be  it  enacted  by  the  Queen's  most  excellent  Ma- 
jesty, by  and  with  the  advice  and  consent  of  the  Lords  spiritual  and 
temporal,  and  Commons  in  this  present  Parliament  assembled,  and 
by  the  authority  of  the  same,  That  a  memorial  of  all  deeds  and  con- 
veyances, which  from  and  after  the  twenty-ninth  day  of  September, 
in  the  year  of  our  Lord  one  thousand  seven  hundred  and  nine,  shall 
be  made  and  executed,  and  of  all  wills  and  devises  in  writing  made 
or  to  be  made  and  published,  where  the  devisor  or  testatrix  shall  die 
after  the  said  twenty-ninth  day  of  September,  of  or  concerning,  and 
whereby  any  honors,  manors,  lands,  tenements,  or  hereditaments  in 
the  said  county,  may  be  any  way  affected  in  law  or  equity,  may  be  reg- 
istered in  such  manner  as  is  hereinafter  directed ;  and  that  every  such 
deed  or  conveyance  that  shall  at  any  time  after  the  said  twenty-ninth 
day  of  September,  be  made  and  executed,  shall  be  adjudged  fraudu- 
lent and  void  against  any  subsequent  purchaser  or  mortgagee  for 
valuable  consideration,  unless  such  memorial  thereof  be  registered 
as  by  this  Act  is  directed,  before  the  registering  of  the  memorial  of 
the  deed  or  conveyance  under  which  such  subseauent  purchaser  or 
mortgagee  shall  claim  ;  and  that  every  such  devise  by  will  shall  be  ad- 
judged fraudulent  and  void  against  any  subsequent  purchaser  or  mort- 
gagee for  valuable  consideration;  unless  a  memorial  of  such  will  be 
registered  at  such  times  and  in  manner  as  is  hereinafter  directed. 

XVI I.  Provided,  always,  and  be  it  further  enacted,  That  this  Act 
shall  not  extend  to  any  copyhold  estates,  or  to.  any  leases  at  a  rack 
rent,  or  to  any  lease  not  exceeding  one  and  twenty  years,  where  the 
actual  possession  and  occupation  goeth  along  with  the  lease,  or  to  any 


Ch.  8)  PRIORITIES  827 

of  the  chambers  in  Serjeants  Inn,  the  inns  of  court,  or  inns  of  Chan- 
cery ;  anything  in  this  Act  contained  to  the  contrary  thereof  in  any 
wise  notvvitlistanding. 


BEDFORD  V.  BACCHUS. 

(High  Court  of  Chancery,  1730.     2  Eq.  Cas.  Ab.  G15,  pi.  12.) 

A.  lent  money  on  a  mortgage  of  lands  in  Middlesex,  and  the  mort- 
gage was  duly  registered.  Afterwards  B.  lent  money  on  the  same 
security,  and  his  mortgage  was  registered.  Then  A.  advanced  a  farther 
sum  upon  the  same  lands,  without  notice  of  the  second  mortgage. 
And  it  was  held  by  Loud  Chancellor  King  that  the  registry  of  the 
second  mortgage  was  not  constructive  notice  to  the  first  mortgagee 
before  his  advancement  of  the  latter  sum,  for  tho'  the  statute  avoids 
deeds  not  registered  as  against  purchasers,  yet  it  gives  no  greater 
efficacy  to  deeds  that  are  registered  than  they  had  before;  and  the 
constant  rule  of  equity  is,  that  if  a  first  mortgagee  lends  a  farther 
sum  of  money  without  notice  of  a  second  mortgage,  his  whole  money 
shall  be  paid  in  the  first  place." 


MORECOCK  V.  DICKINS  et  at. 
(High  Court  of  Chancery,  17G8.    2  Amb.  C7S.) 

On  16th  June,  1749,  Henry  Fandal  leased  a  piece  of  ground,  and 
buildings,  at  Wapping,  for  51  years,  to  the  defendant  George  Wilson. 

On  23d  February  following,  George  Wilson  assigns  the  premises  to 
the  plaintifif  Morecock,  for  the  remainder  of  the  term,  to  secure  the 
sum  of  £800.  and  interest. 

In  1751,  Morecock  went  abroad,  and  left  the  mortgage  deed  in  the 
hands  of  Wilson,  having  first  signed  a  receipt  on  the  back  of  it,  by 
which  it  appeared  that  Morecock  had  been  repaid  the  principal  and 
interest:  and  this  transaction  was  stated  in  the  bill  to  have  passed  at 
the  request  of  Wilson,  who  apprehended  he  might  want  money  to 
carry  on  trade  in  Morecock's  absence;  and  promised,  that  if  he  bor- 
rowed money  thereon,  he  would  repay  it,  and  restore  the  mortgage  to 
Morecock,  clear  of  incumbrances. 

In  1755,  Morecock  returned  to  England,  and  Wilson  delivered  back 
the  mortgage  to  him,  without  having  borrowed  any  money  upon  it; 
where  it  remained  till  1760,  when  he  again  trusted  Wilson  with  the 
mortgage  deed  and  receipt,  with  a  view,  as  stated  in  the  bill,  to  enable 
Wilson  to  borrow  a  large  sum  of  money  upon  security  of  the  prem- 
ises, out  of  which  Morecock  was  to  be  paid. 

In  1763,  Wilson  mortgaged  the  premises  to  John  Athinson,  for  £300. 

5  So  also  in  Bushell  v.  Bnshell,  1  Sch.  &  Lef.  90  (1803). 


828  DERIVATIVE  TITLES  (Part  2 

and  being  pressed  by  Athinson  for  payment  of  the  money,  prevailed 
on  jMoreccck  to  sign  a  writing,  by  which  he  agreed  to  give  Athinson 
priority  of  his  demand. 

It  did  not  appear  in  the  cause,  whether  the  original  lease  was  ever 
out  of  Wilson's  custody;  or  whether  it  was  delivered  to  Morecock  at 
the  time  of  the  mortgage,  and  sent  back  to  Wilson,  with  the  mortgage 
deed;  but  it  appeared  to  be  in  Wilson's  hands  in  1765,  for  on  24th 
January,  1765,  Wilson  surrendered  up  the  lease,  and  took  a  new 
lease  for  71  years. 

On  the  11th  February,  1765,  Morecock  and  Wilson  settled  their  ac- 
counts, and  there  being  a  balance  of  i2065.  5s.  due  to  Morecock,  it 
was  agreed,  that  the  new  lease  should  stand  as  a  security  for  £800. 
and  interest,  at  all  events :  and  Wilson  gave  a  bond  and  judgment  for 
the  remainder  of  the  balance,  to  be  paid  by  instalments ;  but  in  case 
Wilson  should  neglect  to  make  good  any  of  the  payments,  it  was 
agreed  that  Wilson  should  give  Morecock  a  security  for  the  same  upon 
the  premises: 

This  deed  was  registered  within  a  few  days  afterwards. 

On  6th  April,  1765,  Wilson  mortgaged  the  premises  to  defendant 
Dickins,  for  £800.  and  interest;  and  delivered  to  him  the  lease  itself. 
Dickins  had  no  notice  of  plaintiff's  security  at  the  time  he  took  the 
mortgage,  but  being  afterwards  informed  of  it ,  on  15th  February  1766, 
gave  Morecock  a  notice  in  writing,  that  he  would  pay  him  £1000.  on 
the  25th  of  March  following,  or  as  soon  after  as  an  assignment  of  Wil- 
son's lease  could  be  prepared,  according  to  the  agreement  of  the  11th 
February,  1765;  and  at  the  same  time  informed  Morecock  of  the 
mortgage  assignment  to  himself  of  the  6th  April,  1765. 

Wilson  soon  after  becoming  bankrupt,  nothing  was  done  in  conse- 
quence of  the  notice. 

Bill  by  Morecock,  inter  alia,  to  be  paid  the  £800.  agreed  to  be  se- 
cured on  the  premises,  at  all  events,  prior  to  the  defendant  Dickins' 
mortgage. 

Bill  by  Dickins,  to  be  paid  his  mortgage  money,  or  to  foreclose. 

The  question  respecting  this  matter  was.  Whether  Dickins,  though 
he  had  not  actual  notice  of  Morecock's  security  at  the  time  he  took 
the  mortgage,  should  be  affected  by  a  constructive  notice,  arising  from 
the  circumstance  of  the  deed  being  registered  at  the  time  ? 

It  was  admitted  by  the  counsel,  for  Morecock,  that  Dickins  having 
got  the  legal  interest  would  be  entitled  to  priority,  unless  he  could 
be  affected  by  notice.  That  there  was  no  evidence  of  actual  notice. 
But  it  was  insisted  that  the  registration  was  notice  of  itself.  That 
to  give  the  Register  Act  its  proper  and  intended  effect,  the  act  of 
registration  ought  to  operate  as  notice;  and  it  was  compared  to  the 
case  of  judgments;    that  which  is  first  docketed  shall  have  priority. 

On  the  other  side,  it  was  argued  for  defendant  Dickins,  That  the 
Registry  Act  was  made  for  one  single  purpose,  to  give  preference  to 
a  purchase  deed  registered,  before  a  prior  deed  not  registered;    but 


Ch.  8)  PRIORITIES  829 

the  Act  gives  no  greater  efficacy  to  deeds  which  are  registered  than 
they  had  before,  and  the  case  of  Bedford  v.  Bacchus,  2  Eq.  Ca.  Abr. 
615,  26th  November,  1730,  was  cited  for  that  purpose;  where  a 
first  mortgagee  of  lands  in  Middlesex  having  registered  his  mortgage, 
lent  a  further  sum,  without  actual  notice  of  a  second  mortgage,  which 
had  been  registered.  Lord  King,  Chancellor,  was  of  opinion.  That 
he  ought  not  to  be  affected  by  such  constructive  notice,  but  that 
the  rule  of  equity  took  place,  and  the  first  mortgagee  was  entitled 
to  be  paid  his  whole  money  before  the  second  mortgagee.  That  in 
the  present  case,  Dickins  having  got  the  legal  interest,  was  entitled 
to  be  paid  before  a  prior  equitable  incumbrancer,  unless  he  was  af- 
fected by  notice.  That  here  was  no  actual  notice,  and  the  regis- 
tration was  not  constructive  notice  according  to  the  above  determi- 
nation. 

Lord  Camden,  Chancellor.  Q.  Whether  registration  is  presump- 
tive evidence  to  all  mankind? 

If  this  was  a  new  point,  it  might  admit  of  difficulty;  but  the  de- 
termination in  Bedford  v.  Bacchus  seems  to  have  settled  it,  and  it 
would  be  mischievous  to  disturb  it.  The  act  provides  for  one  single  case 
only,  that  is,  to  make  unregistered  deeds  void  against  registered  deeds ; 
but  there  is  no  provision  by  the  Act,  in  a  case  where  all  the  deeds 
are  registered.  And  yet  it  becomes  a  serious  question.  Whether  a 
Court  of  Equity  should  not  say,  that  in  all  cases  of  registry,  which 
is  a  public  depository  for  deeds,  and  to  which  any  person  may  resort, 
a  subsequent  purchaser  ought  not  to  search,  or  be  bound  by  notice  of 
the  registry,  as  he  would  of  a  decree  in  equity,  or  judgment  at  law? 
It  is  a  point  in  which  a  great  deal  of  property  is  concerned,  and 
is  a  matter  of  consequence.  Much  property  has  been  settled,  and 
conveyances  have  proceeded  upon  the  ground  of  that  determination. 
In  the  case  of  Vandebendy,  in  the  House  of  Lords,  the  doctrine 
about  dower  prevailed,  because  it  had  been  practised  in  a  course 
of  conveyance.  A  thousand  neglects  to  search  have  been  occasioned 
by  that  determination,  and  therefore  I  cannot  take  upon  me  to  al- 
ter it.  If  it  was  a  new  case,  I  should  have  my  doubts ;  but  the 
point  is  closed  by  that  determination,  which  has  been  acquiesced 
in  ever  since. 


LE  NEVE  V.  LE  NEVE. 

(Court  of  Cbancery,  1747.     1  Aiiib.  436.) 

Lord  HardwickE,  Chancellor.®  The  bill  was  brought  by  the  plain- 
tiffs, Peter  Le  Neve  and  Hugh  Pigott,  and  Elizabeth  his  wife,  late 
Elizabeth  Le  Neve,  as  the  only  surviving  children  of  the  defendant 
Edward  Le  Neve,  by  Henrietta  his  late  wife. 

«  Portions  of  the  opinion  are  omitted. 


830  DERIVATIVE  TITLES  (Part  2 

The  end  of  the  bill  in  general  is,  to  have  the  execution  of  trust  of 
leasehold  estates  settled  upon  the  late  wife  of  Edward  Le  Neve,  and 
the  issue  of  that  marriage,  by  articles  previous  to  the  marriage,  dated 
1st  July,  1718;  and  that  the  conveyances  made  by  the  defendant  Ed- 
ward L,e  Neve,  and  the  defendant  Mary  his  now  wife,  to  trustees, 
may  be  set  aside,  and  delivered  up,  being  made  after  notice  of  the  ar- 
ticles of  the  1st  of  July,  1718,  or  of  the  other  conveyances  made  in 
pursuance  thereof ;  and  to  have  the  leasehold  exonerated  and  disin- 
cumbered. 

The  facts  are,  that  in  1718,  the  defendant,  Edward  Le  Neve,  in- 
termarried with  his  first  wife  Henrietta  Le  Neve,  who  had  a  consid- 
erable fortune;  and  articles  were  executed  previous  to  the  marriage, 
dated  the  1st  July,  1718,  whereby  the  father  of  Edward,  in  con- 
sideration of  Henrietta's  fortune,  &c.,  covenanted  with  trustees,  to 
convey  to  them  several  estates,  and  some  leasehold  amongst  the  rest, 
near  Soho  Square  in  the  county  of  Middlesex;  to  permit  Edward 
Le  Neve,  the  younger,  to  receive  the  rents  and  profits  during  his  own 
life,  and  after  his  death,  to  pay  to  Henrietta  £250.  a  year,  in  case  she 
survived  Edward;  and  after  the  decease  of  Edward  and  Henrietta, 
then  the  said  estates  should  remain  to  their  issue  in  such  manner  as 
Edward  the  younger  should,  by  will  or  otherwise,  appoint;  and  for 
want  of  such  issue,  to  the  use  of  Edward  Le  Neve  the  father,  and  his 
heirs. 

The  16th  June,  1719,  a  settlement  was  made  in  pursuance  of  the 
articles. 

The  marriage  took  effect;  and  Edward  and  Henrietta  had  issue, 
plaintiflfs  Peter  and  Elizabeth.  Henrietta  died  July,  1740,  leaving  no 
other  children. 

Twenty-five  years  after  the  first  marriage,  Edward  Le  Neve  en- 
tered into  a  treaty  of  marriage  with  the  defendant  Mary,  and  by 
articles  dated  the  16th  of  November,  1743,  previous  to  the  mar- 
riage, Edward,  in  consideration  of  such  marriage,  covenanted  with 
the  trustees,  the  defendants  Dandridge  and  Norton,  to  convey  these 
very  leasehold  estates  near  Soho  Square  to  them,  their  executors, 
&c.,  within  three  months  after  the  marriage,  in  trust  to  pay  to  de- 
fendant Mary,  out  of  the  rents  of  these  messuages,  in  case  she  survived 
him,  a  clear  annuity  of  £150.  for  her  life,  for  her  jointure,  &c. 

The  marriage  took  effect,  and  three  months  after,  on  the  20th  Jan- 
uary, 1743,  a  settlement  was  made  pursuant  to  the  articles. 

The  settled  estate,  being  houses  in  Middlesex,  was  subject  to  the 
Register  Act,  the  7th  Q.  Anne,  cap.  20. 

The  second  articles  and  settlement  were  registered,  but  not  the  first. 

Edward  has  mortgaged  the  houses  likewise. 

The  bill  is  brought,  in  order  to  set  the  second  articles  and  settle- 
ment out  of  the  way,  and  that  they  may  be  postponed  to  the  first  ar- 
ticles and  settlement;  upon  this  equity.  That  the  defendant  Mary 
Le  Neve  had  notice  of  them. 


Ch.  8)  PRIORITIES  831 

The  counsel  for  the  plaintiffs  admit,  That  the  registering  of  the  sec- 
ond articles  and  settlement  has,  in  point  of  law,  affected  the  leasehold 
estates,  as  the  7th  O.  Anne  gives  the  legal  estate  where  the  effect  of 
the  registering  has  placed  it. 

The  question  is,  Whether  equity  will  enable  the  children  of  the 
first  marriage  to  get  the  better  of  the  defendant's  legal  right?  And 
this  will  depend  upon  the  question  of  notice : 

1st,  Whether  it  appears  sufficiently,  that  Joseph  Norton  was  attor- 
ney  for  the  defendant  I\Iary  in  the  transaction  of  her  marriage? 

2dly,  Whether  Norton  himself  had  sufficient  notice  of  tlie  first 
articles  and  settlement? 

3dly,  Whether  that  will  affect  Mary  as  a  purchaser,  and  postpone 
her  articles  and  settlement,  notwithstanding  the  Register  Act?    *    *    *  ^ 

The  third  and  last  general  question  is.  Whether  the  notice  to  Nor- 
ton will  affect  the  defendant  Mary  as  a  purchaser,  and  postpone  her 
articles  and  settlement,  notwithstanding  the  Register  Act? 

This  depends  on  two  things : 

1st.  Whether  any  notice  whatsoever  would  be  sufficient  to  take  from 
the  defendant  the  benefit  of  the  Register  Act? 

2d.  Whether  personal  notice  to  the  defendant  Mary  is  requisite  to 
postpone  her?  or,  Whether  notice  to  her  agent  is  sufficient  to  do  it 
likewise? 

As  to  the  1st,  it  is  a  question  of  great  extent  and  consequence. 

The  preamble  of  the  statute  of  the  '7th  Q.  Anne,  ch.  20,  is  in  sub- 
stance, "Whereas,  by  the  different  and  secret  ways  of  conveying  lands, 
&c.,  such  as  are  ill-disposed  have  it  in  their  power  to  commit  frauds, 
and  frequently  do  so,  by  means  whereof  several  persons  have  been 
undone  in  their  purchases  and  mortgages,  by  prior  and  secret  convey- 
ances, and  fraudulent  incumbrances." 

Then  comes  the  enacting  clause,  "That  a  memorial  of  all  deeds 
and  conveyances  which,  after  the  27th  of  September,  1709,  shall  be 
made  and  executed,  and  of  all  wills  and  devises  in  writing,  whereby 
any  honours,  manors,  lands,  &c.,  in  the  county  of  Middlesex,  may  be 
any  way  affected  in  law  or  equity,  may  be  registered  in  such  manner 
as  is  after  directed :  and  that  every  such  deed  or  conveyance  that  shall 
at  any  time  after,  &c.,  be  made  and  executed,  shall  be  adjudged  fraud- 
ulent and  void  against  any  subsequent  purchaser  or  mortgagee  for 
valuable  consideration,  unless  such  memorial  be  registered  as  by  this 
act  is  directed,  before  the  registering  of  the  memorial  of  the  deed  or 
conveyance  under  which  such  subsequent  purchaser  or  mortgagee  shall 
claim,  &c." 

What  appears  by  the  preamble  to  be  the  intention  of  the  act? 

Plainly,  to  secure  subsequent  purchasers  and  mortgagees  against 
prior  secret  conveyances  and  fraudulent  incumbrances. 

Where  a  person  had  no  notice  of  a  prior  conveyance,  there  the  reg- 

7  The  court  decided  the  first  two  questions  in  tlie  aflirmative. 


832  DERIVATIVE  TITLES  (Part  2 

isterin^  his  subsequent  conveyance  shall  prevail  against  the  prior ;  but 
if  he  had  notice  of  a  prior  conveyance,  then  that  was  not  a  secret  con- 
veyance by  which  he  could  be  prejudiced. 

The  enacting  clause  says,  that  every  such  deed  shall  be  void  against 
any  subsequent  purchaser  or  mortgagee,  unless  the  memorial  thereof 
be  registered,  &c. ;  that  is,  it  gives  him  the  legal  estate ;  but  it  does  not 
say,  that  such  subsequent  purchaser  is  not  left  open  to  any  equity  which 
a  prior  purchaser  or  incumbrancer  may  have ;  for  he  can  be  in  no  dan- 
ger when  he  knows  of  another  incumbrance,  because  he  might  then 
have  stopped  his  hand  from  proceeding. 

This  case  has  been  very  properly  compared  to  cases  on  the  2'7th  H. 
8,  for  inrollment  of  bargains  and  sales. 

That  act  is  formed  pretty  much  in  the  same  manner  with  this. 

The  words  of  tlie  enacting  clause:  "That  from,  &c.,  no  manors, 
lands,  tenements,  &c.,  shall  pass,  alter,  or  change,  from  one  to  another, 
whereby  any  estate  of  inheritance  or  freehold  shall  be  made,  or  take 
effect  in  any  person  or  persons,  or  any  use  thereof  to  be  made  tliereof, 
by  reason  only  of  any  bargain  and  sale  thereof,  except  the  same  bar- 
gain, and  sale  be  by  writing  indented,  sealed,  and  inroUed,  in  one  of 
the  King's  Courts  of  Records  at  Westminster,  or  else  within  the  same 
county,  &c.,  where  the  same  manors,  &c.,  so  bargained  and  sold  do  lie, 
&c. ;  and  the  same  inrollment  to  be  had  and  made  within  six  months 
next  after  the  date  of  the  same  writings  indented,  &c.  Nor  any  use 
shall  pass  thereof  from  one  to  another." 

What  is  the  meaning  of  this? 

Before  the  mal<:ing  of  the  act,  any  paper  writing  passed  the  use  from 
the  bargainor  to  the  bargainee,  whereby  great  mischief  arose ;  for  it 
entangled  the  purchasers,  and  injured  the  Crown,  and  was  contrary 
to  the  rule  of  law,  which  required  notoriety  in  purchases  by  feoffment 
and  livery,  &c. 

But  what  has  been  the  construction  of  this  statute  ever  since  ?  Why, 
if  a  subsequent  bargainee  has  notice  of  a  prior,  he  is  equally  affected 
with  that  notice  as  if  the  prior  purchase  had  been  a  conveyance  by 
feoffment  and  livery,  &c. 

The  operation  of  both  acts  of  Parliament  and  construction  of  them 
is  the  same ;  and  it  would  be  a  most  mischievous  thing,  if  a  person  tak- 
ing that  advantage  of  the  legal  form  appointed  by  an  act  of  Parliament, 
might  under  that  protect  himself  against  a  person  who  had  a  prior 
equity  of  which  he  had  notice. 

The  cases  put  by  the  Attorney-General  are  very  material : 

Suppose  (he  said)  the  defendant  Mary  had  by  letter  of  attorney  em- 
powered Norton  to  transact  the  affair  with  her  husband,  and  he  by 
means  of  this  agency  comes  to  the  knowledge  of  the  prior  articles  and 
settlement,  would  not  this  affect  the  principal  ?  Or  suppose  a  purchas- 
er of  lands  in  a  register  county  orders  his  attorney  to  register  it,  and  he 
neglects  to  do  it,  and  then  buys  the  estate  himself,  and  registers  his 
own  conveyance,  shall  this  be  allowed  to  prevail  ? 


Ch.  8)  PRIORITIES  833 

It  certainly  shall  not ;  for  such  a  purchaser  is  out  of  the  consequence 
which  the  register  act  guards  against,  of  imposition  from  a  prior  secret 
conveyance,  as  he  had  personal  knowledge  of  the  first. 

There  have  been  three  cases  on  the  Register  Act : 

1.  Lord  Forbes  v.  Nelson,  4  Bro.  P.  C.  (Ed.  Toml.)  189. 

2.  Blades  v.  Blades,  1  Eq.  Ca.  Abr.  358,  pi.  2. 

3.  Chival  v.  Nicholls,  10th  December,  1725,  in  the  Exchequer,  (1 
Stra.  564.)     *     *     * 

Consider,  therefore,  what  is  the  ground  of  all  this,  and  particularly 
of  those  cases  which  went  on  the  foundation  of  notice  to  the  agent. 
The  ground  of  it  is  plainly  this.  That  the  taking  of  a  legal  estate  after 
notice  of  a  prior  right,  makes  a  person  mala  fide  purchaser,  and  not, 
that  he  is  not  a  purchaser  for  a  valuable  consideration  in  every  other 
respect.  This  is  a  species  of  fraud  and  dolus  malus  itself ;  for  he 
knew  the  first  purchaser  had  the  clear  right  of  the  estate,  and  after 
knowing  that,  he  takes  away  the  right  of  another  person  by  getting 
the  legal  estate. 

And  this  exactly  agrees  with  the  definition  of  civil  law  of  dolus 
malus.  Dig.  libr.  4,  tit.  3.  Dolum  malum  Servius  ita  definit.  Machi- 
nationem  quandam  alterius  decipiendi  causa,  cum  aliud  simulater,  cum 
aliud  agitur.  Labeo  autem  posse  et  sine  simulatione  id  agi  ut  circum- 
veniatur.  Posse  et  sine  dolo  malo  aliud  agi,  aliud  simulari,  sicuti  faci- 
unt,  qui  jus  ejusmodi  dissimulationem  deserviant  et  tuentur  vel  sua 
vel  aliena.  Itaque  ipse  sic  definit  dolum  malum  esse  omnem  callidia- 
tem  fallacium  machinationem  ad  circumveniendum,  fallendum,  decip- 
iendum  alterum  adhibitum.    Labeonis  definito  vera  est. 

Now  if  a  person  does  not  stop  his  hand,  but  gets  the  legal  estate 
when  he  knew  the  right  was  in  another,  machinatur  ad  circumvenien- 
dum. It  is  a  maxim,  too,  in  our  law.  That  fraus  et  dolus  nem'ini  pa- 
trocinari  debent.    Vid.  Co.  3  Rep.  78 ;  7  Rep.  38. 

Fraud,  or  mala  fides,  therefore,  it  is  the  true  ground  on  which  the 
Court  is  governed  in  the  cases  of  notice ;  and  it  is  a  consequence  of  the 
decision  of  the  former  question,  that  notice  to  the  agent  is  sufficient ; 
for  if  the  ground  is  the  fraud,  or  mala  fides,  of  the  party,  then  it  is 
all  one,  whether  by  the  party  himself  or  his  agent;  still  it  is  a  ma- 
chinatio  ad  circum.veniendum,  and  the  putting  a  copy  of  the  first  ar- 
ticles and  settlement  into  Norton's  hands,  to  take  the  opinion  of  coun- 
sel in  what  manner  they  could  be  set  aside,  is  a  contrivance  to  circum- 
vent. 

It  has  been  said.  If  this  woman  has  been  imposed  on  by  her  hus- 
band, she,  instead  of  cheating,  has  been  cheated. 

But  then  who  ought  to  suffer?  the  person  entrusting  an  agent,  or 
a  stranger  who  did  not  employ  him?  He  certainly  who  trusts  most 
ought  to  suffer  most. 

Mrs.  Hatt,  the  third  mortgagee  in  the  case  in  2  Vern.  mentioned 
before,  was  imposed  on ;  and  so  was  Moore,  in  the  other  case  reported 
Aig.Prop. — 5.3 


834  DERIVATIVE  TITLES  (Part  2 

there,  clearly  imposed  on;  and  yet  if  this  was  to  be  any  excuse,  it 
would  make  all  the  cases  of  notice  very  precarious ;  for  it  seldom  hap- 
pens but  the  agent  has  imposed  on  his  principal ;  and  notwithstanding 
that,  the  person  trusting  ought  to  suffer  for  his  ill-placed  confidence. 
Therefore,  in  both  respects,  as  agent  and  trustee,  notice  to  Joseph 
Norton,  is  notice  to  defendant  Mary  likewise.  And  as  to  the  Registry 
Act,  here  is  sufficient  equity  in  the  plaintiff  to  postpone  the  second 
articles  and  settlement,  notwithstanding  those  only  have  been  regis- 
tered.   And  decreed  accordingly.* 


II.  In  United  Statejs 

(A)  Statutes 

CALIFORNIA  CIV.  CODE  (1908). 

Section  1213.  Every  conveyance  of  real  property,  acknowledged  or 
proved,  and  certified  and  recorded,  as  prescribed  by  law,  from  the  time 
it  is  filed  with  the  recorder  for  record,  is  constructive  notice  of  the  con- 
tents thereof  to  subsequent  purchasers  and  mortgagees ;  and  a  certified 
copy  of  any  such  recorded  conveyance  may  be  recorded  in  any  other 

8  As  to  the  rule  of  the  prindpal  case  in*  an  action  at  law,  see  Doe  d.  Robin- 
son V.  Allsop,  5  B.  &  Aid.  142  (1S21),  Bayley,  .J.,  there  said:  "The  words  of 
the  statute  are  that  such  deeds  or  conveyances  shall  be  adjudged  fraudulent 
and  void  against  every  subsequent  purchaser  for  valuable  consideration.  It  is 
to  be  observed  that  the  words  'bona  fide  purchaser'  are  not  used.  I  think,  there- 
fore, that  we  are  bound  in  a  court  of  law  to  give  effect  to  these  words.  That 
seems  to  have  been  the  opinion  of  the  judges  in  the  cases  cited,  although  they 
thought  that  a  court  of  equity  would,  in  some  cases,  interfere  to  relieve  the 
party.  It  is  so  laid  down  by  Lord  Hardwicke,  in  Le  Neve  v.  Le  Neve,  and  the 
words  of  Lord  JLansfield,  in  Doe  ex  deiu.  Watson  v.  Routledge,  Cowp.  712  (1777) 
are  those :  'Elquity  says,  if  the  party  Icne^v  of  the  unregistered  deed,  his  regis- 
tered deed  shall  not  set  it  aside,  because  he  has  that  notice  which  the  act  of 
Parliament  intended  he  should  have.'  He  therefore  puts  it  as  a  case  in  which 
equity  would  interfere;  and  the  circumstances  of  this  case  shew  the  propriety 
of  our  adhering  to  the  words  of  the  act;  for  I  am  by  no  means  clear  that  we 
should  not  work  great  injustice,  if  we  were  to  decide  in  favour  of  rhe  defend- 
ant." 

In  Hine  v.  Dodd,  2  Atk.  275  (1741),  a  bill  was  filed  by  a  judgment  creditor 
to  be  let  in  upon  an  estate  in  Middlesex  preferably  to  the  defendant,  a  mort- 
gagee of  the  same  estate,  on  the  ground  that  the  defendant  had  notice  of  the 
judgment  before  the  mortgage  was  executed.  The  judgment  was  entered 
March  12.  17.3.3,  and  registered  June  12,  17.3,5.  The  mortgage  was  made  May 
24,  1735,  and  registered  June  2,  1735.  I>ord  Chancellor  Hardwicke  said  :  "This 
case  depends  upon  the  notice  the  defendant  had  of  the  judgment  before  his 
mortgage  was  registered.  The  register  act,  the  7th  of  Anne,  c.  20.  is  notice  to 
the  parties,  and  a  notice  to  everybody;  and  the  meaning  of  this  statute  was, 
to  prevent  parol  proofs  of  notice,  or  not  notice.  But  notwithstanding  there 
are  cases  where  this  court  have  broken  in  upon  this,  though  one  incumbrance 
was  registered  before  another,  but  it  was  in  cases  of  fraud.  *  *  *  There 
may  possibly  have  been  cases  upon  notice  divested  of  fraud,  but  then  the 
proof  must  be  extremely  clear.  But  though  in  the  present  case  there  are  strong 
circumstances  of  notice  before  the  execution  of  the  mortgage,  yet,  unon  mere 
suspicion  only,  I  will  not  overturn  a  positive  law."  See,  however,  Whitbread 
V.  Boulnois,  1  Y.  «&  C.  (Ex.  R.)  303  (1S35). 


Ch.  8)  PRIORITIES  835 

county,  and  when  so  recorded  the  record  thereof  shall  have  the  same 
force  and  effect  as  though  it  was  of  the  original  conveyance. 

Section  1214.  Every  conveyance  of  real  property,  other  than  a 
lease  for  a  term  not  exceeding  one  year,  is  void  as  against  any  subse- 
quent purchaser  or  mortgagee  of  the  same  property,  or  any  part  there- 
of, in  good  faith  and  for  a  valuable  consideration,  whose  conveyance  is 
first  duly  recorded,  and  as  against  any  judgment  affecting  the  title, 
unless  such  conveyance  shall  have  been  duly  recorded  prior  to  the 
record  of  notice  of  action. 

Kerr's  Cyc.  Code. 


REVISED  LAWS  OF  ILLINOIS  (1912). 

Section  28.  Deeds,  mortgages,  powers  of  attorney,  and  other  in- 
blruments  relating  to  or  affecting  the  title  to  real  estate  in  this  state, 
shall  be  recorded  in  the  county  in  which  such  real  estate  is  situated ; 
but  if  such  county  is  not  organized,  then  in  the  county  to  which  such 
unorganized  county  is  attached  for  judicial  purposes. 

Section  30.  All  deeds,  mortgages  and  other  instruments  of  writing 
which  are  authorized  to  be  recorded,  shall  take  effect  and  be  in  force 
from  and  after  the  time  of  filing  the  same  for  record,  and  not  before, 
as  to  all  creditors  and  subsequent  purchasers,  without  notice ;  and  all 
such  deeds  and  title  papers  shall  be  adjudged  void  as  to  all  such  credi- 
tors and  subsequent  purchasers,  without  notice,  until  the  same  shall  be 
filed  for  record. 

Section  31.  Deeds,  mortgages  and  other  instruments  of  writing  re- 
lating to  real  estate  shall  be  deemed,  from  the  time  of  being  filed  for 
record,  notice  to  subsequent  purchasers  and  creditors,  though  not  ac- 
knowledged or  proven  according  to  law ;  but  the  same  shall  not  be  read 
as  evidence,  unless  their  execution  be  proved  in  manner  required  by  the 
rules  of  evidence  applicable  to  such  writings,  so  as  to  supply  the  de- 
fects of  such  acknowledgment  or  proof. 

Kurd's  Rev.  St.  c.  30. 


REVISED  LAWS  OF  MASSACHUSETTS  (1902). 

Section  4.  A  conveyance  of  an  estate  in  fee  simple,  fee  tail  or  tor 
life,  or  a  lease  for  more  than  seven  years  from  the  making  thereof, 
shall  not  be  valid  as  against  any  person,  except  the  grantor  or  lessor, 
his  heirs  and  devisees  and  persons  having  actual  notice  of  it,  unless  it, 
or  an  office  copy  as  provided  in  section  fifteen  of  chapter  twenty-two, 
is  recorded  in  the  registry  of  deeds  for  the  county  or  district  in  which 
the  land  to  which  it  relates  is  situated. 

Chapter  127. 


836  DERIVATIVE  TITLES  (Part 


CONSOLIDATED  LAWS  OF  NEW  YORK  (1909). 

Section  290.  L  The  term  "real  property,"  as  used  in  this  article^ 
includes  lands,  tenements  and  hereditaments  and  chattels  real,  except 
a  lease  for  a  term  not  exceeding  three  years. 

2.  The  term  "purchaser"  includes  every  person  to  whom  any  estate 
or  interest  in  real  property  is  conveyed  for  a  valuable  consideration, 
and  every  assignee  of  a  mortgage,  lease  or  other  conditional  estate. 

3.  The  term  "conveyance"  includes  every  written  instrument,  by 
which  any  estate  or  interest  in  real  property  is  created,  transferred, 
mortgaged  or  assigned,  or  by  which  the  title  to  any  real  property  may 
be  affected,  including  an  instrument  in  execution  of  a  power,  although 
the  power  be  one  of  revocation  only,  and  an  instrument  postponing  or 
subordinating  a  mortgage  lien ;  except  a  will,  a  lease  for  a  term  not  ex- 
ceeding three  years,  an  executory  contract  for  the  sale  or  purchase  of 
lands,  and  an  instrument  containing  a  power  to  convey  real  property 
as  the  agent  or  attorney  for  the  owner  of  such  property. 

Section  291.  A  conveyance  of  real  property,  within  the  state,  on  be- 
ing duly  acknowledged  by  the  person  executing  the  same,  or  proved  as 
required  by  this  chapter,  and  such  acknowledgment  or  proof  duly  cer- 
tified when  required  by  this  chapter,  may  be  recorded  in  the  office  of 
the  clerk  of  the  county  where  such  real  property  is  situated,  and  such 
county  clerk  shall,  upon  the  request  of  any  party,  on  tender  of  the  law- 
ful fees  therefor,  record  the  same  in  his  said  office.  Every  such  con- 
veyance not  so  recorded  is  void  as  against  any  subsequent  purchaser  in 
good  faith  and  for  a  valuable  consideration,  from  the  same  vendor,  his 
heirs  or  devisees,  of  the  same  real  property  or  any  portion  thereof, 
whose  conveyance  is  first  duly  recorded. 

Chapter  52,  art.  9. 


GEN.  CODE  OF  OHIO. 

Section  8542.  All  mortgages,  executed  agreeably  to  the  provisions 
of -this  chapter,  shall  be  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  mortgaged  premises  are  situated,  and  take  effect 
from  the  time  they  are  delivered  to  the  recorder  of  the  proper  county 
for  record.  If  two  or  more  mortgages  are  presented  for  record  on 
the  same  day,  they  shall  take  effect  from  the  order  of  presentation  for 
record.  The  first  presented  must  be  the  first  recorded,  and  the  first 
recorded  shall  have  preference. 

Section  8543.  All  other  deeds  and  instruments  of  writing  for  the 
conveyance  or  incumbrance  of  lands,  tenements,  or  hereditaments,  ex- 
ecuted agreeably  to  the  provisions  of  this  chapter,  shall  be  recorded 
in  the  office  of  the  recorder  of  the  county  in  which  the  premises  are 
situated,  and  until  so  recorded  or  filed  for  record,  they  shall  be  deemed 


Ch.  8)  PRIORITIES  837 

fraudulent,  so  far  as  relates  to  a  subsequent  bona  fide  purchaser  hav- 
ing, at  the  time  of  purchase,  no  knowledge  of  the  existence  of  such 
former  deed  or  instrument. 
Page  &  A.  Gen.  Code. 


OREGON  LAWS. 

Section  7129.  Every  conveyance  of  real  property  within  this  state 
hereafter  made,  which  shall  not  be  recorded  as  provided  in  this  title 
within  five  days  thereafter,  shall  be  void  against  any  subsequent  pur- 
chaser in  good  faith  and  for  a  valuable  consideration  of  the  same  real 
property,  or  any  portion  thereof,  whose  conveyance  shall  be  first  duly 
recorded. 

Lord's  Oregon  Laws,  1910. 


(B)  Scope  of  Operation  and  Effect  of  Statutes 
SIMONSON  V.  WENZEL. 

(Supreme  Court  of  North  Dakota,  1914.     27  N.  D.  6.3S,  147  N.  W.  804.) 

FiSK,  J.*  This  is  an  appeal  from  a  judgment  of  tlie  district  court 
of  McHenry  county,  decreeing  the  foreclosure  of  a  real-estate  mortgage 
in  plaintiff's  favor.  The  appeal  is  upon  the  judgment  roll  proper,  ap- 
pellants' contention  being  that  the  conclusions  of  the  trial  court  are  not 
warranted  by  the  findings  of  fact. 

Such  findings  of  fact  are  in  substance  as  follows : 

1.  That  on  and  prior  to  March  20,  1906,  the  defendant,  Dakota  De- 
velopment Company,  was  the  owner  in  fee  of  the  real  estate  in  con- 
troversy as  disclosed  by  the  public  records  in  the  office  of  the  register 
of  deeds.  On  such  date  this  company  entered  into  an  executory  con- 
tract with  defendant  Carl  F.  Wenzel,  in  the  usual  form,  whereby,  for 
a  stated  consideration  of  $100,  $35  of  which  wa^  paid  in  cash  and  the 
balance  to  be  paid  in  equal  instalments  on  March  20,  1907,  and  March 
30,  1908,  with  interest,  it  promised  and  agreed  to  sell  and  convey  such 
premises  to  the  said  Wenzel,  such  contract  obligating  the  purchaser  to 
pay  all  taxes  and  assessments  levied,  assessed,  or  imposed  upon  the 
premises  in  each  year,  and  also  contained  a  stipulation  that  "no  assign- 
ment or  transfer  of  any  interest  in  and  to  this  agreement  or  the  lands 
described,  less-than  the  whole  thereof,  will  be  recognized  by  said  vendor 
under  any  circumstances  or  in  any  event  whatever,  and  no  assignment 
shall  be  binding  upon  the  vendor  unless  approved  by  its  president."  It 
also  contained  a  stipulation  "that  time  is  to  be  the  very  essence  of  tliis 
agreement."     Such  contract  also  contained  other  stipulations  relative 

»  Portions  of  the  opiiiion  are  omitted. 


838  DERIVATIVE  TITLES  (Part  2 

to  the  vendor's  right  to  declare  a  forfeiture  in  case  the  vendee  failed  in 
any  respect  to  comply  with  his  part  of  the  contract,  but  we  deem  it  un- 
necessary to  set  such  provisions  out  in  extenso. 

2.  Defendant  Wenzel  entered  into  the  possession  of  the  premises, 
and  constructed  a  dwelling  house  thereon,  which  he  and  his  family 
occupied  as  their  homestead  until  about  January  20,  1908,  when  he  sold 
and  assigned  such  contract  to  defendant  M.  C.  Krupp. 

3.  On  April  17,  1907,  Wenzel  and  wife,  for  a  valuable  consideration, 
executed  and  delivered  to  plaintiff  their  promissory  note  for  the  sum  of 
$914.70,  payable  on  November  1st  thereafter,  with  interest  at  the  rate 
of  8  per  cent  per  annum ;  and  to  secure  the  payment  thereof  they  ex- 
ecuted and  delivered  to  plaintiff  a  mortgage  on  the  land  in  controversy, 
which  was  filed  in  the  office  of  the  register  of  deeds  of  McHenry  coun- 
ty on  April  18,  1907,  and  recorded  in  Book  31  of  Mortgages,  at  page 
516. 

4.  That  such  note  and  mortgage  have  not  been  paid,  and  plaintiff  is 
the  present  owner  and  holder  thereof. 

5.  That  Carl  F.  Wenzel  paid  to  the  Dakota  Development  Company 
the  sum  of  $35  at  the  time  of  the  execution  of  the  contract  for  deed, 
but  made  default  in  the  payment  due  March  20,  1907,  and  the  same 
was  not  paid  until  after  the  assignment  of  such  contract  to  defendant 
Krupp,  as  hereinafter  set  forth.  That  such  contract  for  deed  was  at 
no  time  recorded  or  filed  for  record  in  the  office  of  the  register  of 
deeds  of  McHenry  county,  and  the  record  title  of  the  premises  at  all 
times  up  to  January  29,  1908,  remained  in  tlie  Dakota  Development 
Company. 

6.  On  or  about  January  20,  1908,  Wenzel,  while  in  possession  of 
said  land  as  his  homestead,  entered  into  negotiations  with  defendant 
Krupp  for  the  sale  to  him  of  the  contract  for  deed  aforesaid,  and  the 
premises  therein  described,  upon  the  terms  that  such  contract  was  to 
be  assigned  to  Krupp,  who  was  to  receive  a  warranty  deed  of  the  prem- 
ises direct  from  the  Development  Company.  Wenzel  and  wife  there- 
upon assigned  their  interest  in  such  contract  to  Krupp,  and  the  latter 
paid  to  the  Development  Company  the  amount  then  remaining  due  up- 
on said  contract  ($65  and  interest),  and  Krupp  also  paid  to  Wenzel  the 
agreed  consideration  of  $1,000  less  the  payment  aforesaid  to  the  De- 
velopment Company,  and  the  Development  Company  did  not,  nor 
did  its  president  or  any  one  of  its  authorized  officials,  have  any  knowl- 
edge or  actual  notice  of  the  execution  or  delivery  of  the  mortgage  to 
the  plaintiff  aforesaid. 

7.  That  defendant  Krupp  purchased  Wenzel's  interest  in  such  con- 
tract in  good  faith,  and  without  any  actual  notice  or  knowledge  of 
the  existence  of  plaintiff's  mortgage,  and  he  had  no  intent  to  cheat  or 
defraud  the  plaintiff,  but  acted  in  absolute  good  faith  in  the  making 
of  said  purchase,  and  purchased  and  paid  for  the  same  in  utter  ignor- 
ance of  the  plaintiff's  mortgage,  but  he  knew  that  Wenzel  and  family 
were  living  on  and  occupying  said  premises,  but  had  no  notice  or 


Ch.  8)  PRIORITIES  839 

knowledge  of  such  mortgage  other  than  that  imparted  by  the  record 
thereof. 

8.  On  January  24,  1908,  the  Development  Company  duly  executed 
and  delivered  to  Krupp  a  warranty  deed  in  the  usual  form,  conveying 
the  premises  to  him,  which  deed  contained  the  usual  covenants,  and 
which  was  duly  filed  for  record  on  January  29,  1908. 

9.  The  trial  court  also  found  that  the  defendant  Wenzel  was  on 
March  3,  1910,  adjudged  a  bankrupt  in-  the  Federal  court,  and  on 
June  22,  1910,  that  court,  in  due  form,  discharged  him  from  all  debts 
and  provable  claims,  the  notes  held  by  plaintiff  being  scheduled  in  such 
bankruptcy  court. 

Upon  such  findings  of  fact  the  district  court  made  conclusions  of 
law  favorable  to  plaintiff,  adjudging  a  foreclosure  of  his  mortgage. 

Among  other  conclusions,  the  trial  court  found  that  at  the  time  of 
the  execution  of  the  mortgage  by  Wenzekhe  had  a  mortgagable  inter- 
est in  and  to  the  said  premises  by  virtue  of  the  contract  for  deed,  and 
that  the  recording  of  such  mortgage  was  due  and  legal  notice  to  all 
the  world  of  the  rights  of  the  plaintiff  as  mortgagee,  and  that  defend- 
ant Krupp  therefore  had  constructive  notice  of  such  mortgage  at  the 
time  he  purchased  the  assignment  of  the  contract  for  deed  to  the  said 
premises,  and  the  conveyance  of  the  premises  to  hira  by  the  Develop- 
ment Company  was  subject  to  the  lien  of  plaintiff's  mortgage. 

From  the  above  it  is  apparent  that  the  crucial  question  for  decision 
is  whether  appellant  Krupp,  who,  as  the  trial  court  found,  in  good 
faith  and  for  value  purchased  an  assignment  of  the  Wenzel  contract 
and  a  deed  of  the  premises  from  its  codefendant,  the  Development 
Company,  without  any  actual  knowledge  of  the  plaintiff's  mortgage, 
was  nevertheless  affected  with  constructive  notice  thereof  sO'  as  to 
confer  upon  plaintiff  a  lien  under  his  mortgage  superior  and  paramount 
to  the  rights  of  such  defendant.  In  answering  this  question  we  must 
bear  in  mind  the  fact,  as  found  by  the  trial  court,  that  the  contract 
for  deed  executed  and  delivered  by  the  Development  Company  to  Wen- 
zel was  not  entitled  to  record,  nor  was  the  same  disclosed  in  any  way 
by  the  public  records,  and,  as  far  as  such  records  disclosed,  Wenzel 
had  no  interest  whatever  in  the  property  in  controversy,  but  the  same 
stood  in  the  name  of  and  was  owned  exclusively  by  the  Development 
Company.  It  is  no  doubt  true  that  Wenzel,  by  such  executory  contract 
of  purchase  which  gave  him  possession,  acquired  an  equitable  interest 
in  such  property  which  he  might  sell  or  mortgage  (Cummings  v.  Dun- 
can, 22  N.  D.  534,  134  N.  W.  712,  Ann.  Cas.  1914B,  976);  and  it  is 
likewise  no  doubt  true  that  his  possession  under  the  contract  operated 
to  convey  notice  to  the  world  of  his  equities  thereunder.  But  Wen- 
zel's  interest  under  such  contract  was  cognizable  merely  in  equity,  not 
in  law.  Miller  v.  Shelburn,  15  N.  D.  182,  107  N.  W.  51 ;  Cummings  v. 
Duncan,  supra.  His  possession  under  such  executory  contract  op- 
erated, no  doubt,  as  notice  to  the  world  of  his  equities  thereunder. 
It  is,  however,  quite  a  different  proposition  to  say  that  such  posses- 


840  DERIVATIVE  TITLES  (Part  2 

sion  constituted  notice  of  the  rights  of  persons  claiming  to  hold  as  as- 
signees, vendees,  or  mortgagees  of  such  equitable  interest. 

Was  appellant  Krupp,  under  the  facts,  charged  with  constructive 
notice  of  plaintiff's  mortgage?  As  stated  by  appellant's  counsel  this 
suggests  two  main  inquiries. 

First,  was  the  mortgage  a  conveyance  within  the  meaning  of  the  re- 
cording laws?     Second,  was  it  a  conveyance  in  the  chain  of  title? 

Plaintiff's  right  to  recover,  depends  upon  an  affirmative  answer  to 
both  of  these  questions.  Counsel  for  appellant  assert,  with  apparent 
confidence  in  the  correctness  of  tlieir  position,  that  both  of  such  ques- 
tions must  receive  a  negative  answer,  and  they  have  presented  a  very 
able  and  ingenious  argument  in  support  of  their  contention.  They  ap- 
parently concede  that  under  the  general  statutory  rule  in  other  states, 
either  in  express  terms  or  by  judicial  construction,  the  record  of  an 
instrument  conveying  or  encumbering  a  mere  equitable  estate  or  in- 
terest, as  well  as  a  legal  estate  or  interest,  operates  to  give  constructive 
notice  thereof,  but  they  seek  to  differentiate  our  recording  act  from  tlie 
statutes  of  other  states,  and  contend  for  a  construction  eliminating 
from  its  operation  mere  equitable  interests  or  liens.  As  suggested  by 
them,  it  is  undoubtedly  true  that  the  doctrine  of  constructive  notice 
by  recording  instruments  is  of  purely  statutory  creation,  and  that  the 
recording  of  an  instrument  not  within  the  statute  does  not  impart  con- 
structive notice  thereof.  This,  of  course,  is  elementary.  2  Devlin, 
Deeds,  §  646,  and  cases  cited. 

The  recording  acts  of  this  state  are  embraced  in  sections  5038,  5039, 
and  5042,  Rev.  Codes  1905. 

Section  5038  reads  in  part  as  follows :  "Every  conveyance  by  deed, 
mortgage,  or  otherwise,  of  real  estate  within  this  state,  shall  be  re- 
corded in  the  office  of  the  register  of  deeds  of  the  county  where  such 
real  estate  is  situated,  and  every  such  conveyance  not  so  recorded  shall 
be  void  as  against  any  subsequent  purchaser  in  good  faith,  and  for  a 
valuable  consideration,  of  the  same  real  estate,  or  any  part  or  portion 
thereof,  whose  conveyance,  whether  in  the  form  of  a  warranty  deed,  or 
deed  of  bargain  and  sale,  deed  of  quitclaim  and  release,  of  the  form 
in  common  use,  or  otherwise,  is  first  duly  recorded." 

Section  5039  defines  the  term  "conveyance"  as  used  in  the  last  sec- 
tion as  embracing  "every  instrument  in  writing  by  which  any  estate 
or  interest  in  real  property  is  created,  aliened,  mortgaged,  or  encum- 
bered, or  by  which  the  title  to  any  real  property  may  be  affected,  ex- 
cept wills  and  powers  of  attorney." 

Section  5042  provides:  "An  unrecorded  instrument  is  valid  as  be- 
tween the  parties  thereto  and  those  who  have  notice  thereof;  but 
knowledge  of  the  record  of  an  instrument  out  of  the  chain  of  title  does 
not  constitute  such  notice." 

The  first  clause  of  the  section  last  quoted  constituted  the  entire  sec- 
tion as  originally  enacted,  but  in  1899  the  legislature,  by  chapter  167, 
Laws  of   1899,  added  thereto  the  latter  clause,  which,  no  doubt,  as 


Ch.  8)  PRIORITIES  841 

counsel  state,  was  for  the  purpose  of  changing  the  rule  announced  by 
this  court  in  Doran  v.  Dazey,  5  N.  D.  167,  64  N.  W.  1023,  57  Am.  St. 
Rep.  550.  In  that  case  it  was  held  that  actual  knowledge  of  the  record 
of  an  instrument  out  pf  the  chain  of  title  was  constructive  notice  of 
the  original  instrument  and  of  the  rights  of  the  parties  under  it,  and 
by  such  amendment  the  rule  was  changed  so  that  now  mere  knowledge 
of  the  record  of  an  instrument  out  of  the  chain  of  title  does  not  con- 
stitute notice  thereof. 

Our  first  inquiry,  therefore,  is  whether  plaintiff's  mortgage,  which 
covered  Wenzel's  equitable  interest  under  his  executory  contract  to 
purchase  the  real  property  in  question,  is  such  an  instrument  as  was 
entitled  to  be  recorded.  In  other  words,  was  such  mortgage  a  "con- 
veyance" within  the  meaning  of  the  recording  laws  aforesaid.^"    *    *    * 

Do  our  recording  laws  include  such  a  mortgage?  We  are  entirely 
satisfied  that  this  question  must  also  receive  an  affirmative  answer. 
The  contention  of  appellant's  counsel  to  the  contrary  is,  we  think, 
based  upon  an  unwarranted  and  erroneous  construction  of  our  stat- 
ute. We  are  unable  to  distinguish  our  law  from  the  Michigan  law 
and  the  corresponding  statutes  in  most  states.  The  fact  that  the  Mich- 
igan statute  in  defining  the  word  "conveyance,"  as  used  in  its  record- 
ing law,  in  addition  to  the  language  in  section  5039  of  our  Code  adds 
the  words  "in  law  or  equity,"  does  not  make  their  statute  broader 
than  ours.  We  think  the  statute  would  convey  the  same  meaning 
without  these  words,  and  they  were  evidently  inserted  through  a  super- 
abundance of  precaution.  Furthermore,  the  language  in  the  first  por- 
tion of  the  section,  "the  term  conveyance  *  *  *  shall  be  construed 
to  embrace  every  instrument  *  *  *  ^^y  -which  any  estate  or  in- 
terest in  real  property  is  created,  aliened,  "mortgaged,  or  assigned," 
clearly  was  intended  to  cover  a  .mortgage  of  an  equitable  title.  In 
support  of  our  views  see  Clark  v.  Lyster,  155  Fed.  513,  84  C.  C.  A. 
27;  27  Cyc.  1157,  and  cases  cited  in  note  28  on  page  1158;  also  1 
Jones,  Mortg.  §  476. 

Having  reached  the  conclusion  that  plaintiff's  mortgage  was  enti- 
tled to  record  under  our  recording  acts  aforesaid,  it  only  remains  for 
us  to  determine  whether  the  record  thereof  imparted  constructive  no- 
tice to  defendant  Krupp  at  the  time  he  purchased  an  assignment  of 
Wenzel's  contract  and  procured  the  deed  from  Wenzel's  grantor,  the 
Dakota  Development  Company.  In  considering  this  question  it  is  im- 
portant to  bear  in  mind  the  fact  that  Krupp  knew  that  Wenzel  was  in 
possession  of  the  premises,  asserting  equitable  ownership  under  the 
contract  of  purchase,  and  that  he  expressly  recognized  Wenzel's  con- 
tract rights  by  purchasing  from  him  an  assignment  thereof. 

In  the  light  of  these  facts,  can  Krupp  successfully  urge  that  Wen- 
zel's mortgage  to  plaintiff  was  out  of  the  chain  of  title,  and  hence, 
under  section  5042,  Rev.  Codes,  the  record  of  such  mortgage  did  not 

10  The  court  concluded  it  was. 


842  DERIVATIVE  TITLES  (Part  2 

constitute  notice  thereof  to  him?  We  think  not.  The  basic  fallacy  in 
appellant's  argument,  as  we  now  view  it,  consists  in  the  unwarranted 
assumption  that  such  mortgage,  as  to  him,  was  out  of  the  chain  of  ti- 
tle. The  reverse  is  true.  He  dealt  with  Wenzel,  and  therefore  was 
bound  in  law  to  know,  and  in  fact  did  know,  'that  he  was  the  equita- 
ble owner  of  the  premises,  and  that  his  equitable  title  came  from  the 
Dakota  Development  Company  through  such  contract.  He  was  also 
bound  in  law  to  know,  therefore,  that  Wenzel  had  a  mortgagable  in- 
terest in  the  premises,  and  that  he  might  have  sold,  assigned,  or  mort- 
gaged such  interest,. and  the  conveyance  in  either  form  would  have 
been  entitled  to  record.  As  to  Krupp,  therefore,  the  chain  of  title  did 
not  stop  with  the  Development  Company,  but  the  last  link  in  such 
chain  was  in  Wenzel.  He  was  therefore  charged  with  constructive 
notice  of  plaintiff's  mortgage,  and  bought  subject  thereto.  It  would 
have  been  entirely  different  had  he  dealt  alone  with  the  Development 
Company  in  ignorance  of  Wenzel's  rights.  In  such  event  section  5042, 
supra,  would  have  afforded  him  protection,  but  under  the  facts  it  can 
have  no  application. 

As  said  in  1  Jones  on  Mortgages,  §  476:  "The  registry  of  a  con- 
veyance of  an  equitable  title  is  notice  to  a  subsequent  purchaser  of  the 
same  interest  or  title  from  the  same  grantor.  *  *  *  Xhe  record 
of  a  mortgage  or  other  conveyance  which  is  entitled  to  be  recorded 
operates  as  constructive  notice  to  subsequent  purchasers  claiming 
under  the  same  grantor,  or  through  one  who  is  the  common  source  oi 
title"— citing  Edwards  v.  McKernan,  55  Mich.  520,  526,  22  N.  W.  20. 
See  also  Jones  v.  Lapham,  15  Kan.  540,  wherein  Judge  Brewer,  while 
on  the  supreme  bench  of  Kansas,  in  speaking  to  the  point,  said :  "As 
to  Maggie  Murray,  it  appears  that  she  had  knowledge  of  the  equitable 
interest,  but  not  of  the  mortgage.  Hull,  however,  was  in  possession  of 
the  lots,  and  had  made  valuable  improvements  on  them.  These  im- 
provements she  bought.  Now,  section  20  of  the  conveyance  act  (Gen. 
St.  §  187)  provides  that  'every  such  instrument  in  writing  (and  this, 
by  prior  description,  includes  mortgages,  and  mortgages  upon  equitable 
interest)  shall,  from  the  time  of  filing  the  same  with  the  register  of 
deeds  for  record,  impart  notice  to  all  persons  of  the  contents  thereof ; 
and  all  subsequent  purchasers  and  mortgagees  shall  be  deemed  to  pur- 
chase with  notice.'  While  this  general  provision,  as  respects  notice, 
may  be  limited,  so  far  as  relates  to  conveyances  or  mortgages  of  eq- 
uitable interests,  by  the  condition  of  the  legal  title,  and  the  knowl- 
edge which  the  holders  thereof  have  of  the  existence  of  the  equity,  as 
indicated  in  Kirkwood  v.  Koester,  11  Kan.  471,  yet,  aside  from  tliat 
limitation,  it  js  of  controlling  force.  Whoever  buys  a  legal  estate,  hav- 
ing knowledge  of  an  outstanding  equitable  interest,  is  chargeable  witli 
notice  of  any  record  of  conveyance  or  encumbrance  thereof.  Who- 
ever buys  an  equitable  interest  in  land  is  also  chargeable  with  like 
notice.  In  fact,  knowledge  of  an  equitable  interest  carries  with  it  no- 
tice of  the  condition  of  such  interest  as  is  apparent  from  the  public 


Ch.  8)  PRIORITIES  843 

records."  We  understand  that  the  rule  thus  stated  by  Judge  Brewer 
is  generally  recognized  and  well  established,  and  we  do  not  think  that 
such  rule  is  changed  in  this  state  by  chapter  167,  Laws  of  1899,  here- 
tofore referred  to.     *     *     * 

The  District  Court  will  modify  its  judgment  accordingly,  and  as  thus 
modified  the  judgment  is  affirmed.  No  costs  shall  be  taxed  to  either 
party  on  the  appeal. 


LOSEY  V.  SIMPSON. 

(Court  of  Chancery  of  New  Jersey,  1856.     11  N.  J.  Eq.  246.) 

The  Chancellor.  The  bill  is  filed  upon  a  mortgage,  given  by  Fer- 
dinand G.  Simpson  to  Pamela  Adams,  and  by  her  assigned  to  the  com- 
plainants. The  controversy  is  in  reference  to  the  priority  of  this  mort- 
gage, and  a  mortgage  given  by  Calvin  A.  Kanouse  to  Noah  Estell,  now 
held  by  the  defendant,  Mary  Estell,  as  the  executrix  of  the  last  will 
of  Noah  Estell,  deceased. 

Stephen  Adams,  being  indebted  to  Noah  Estell  in  the  sum  of  twelve 
hundred  dollars  for  money  lent,  had  given  a  mortgage  to  secure  the 
same  on  several  tracts  of  land,  embracing  the  land  which  is  covered 
by  the  mortgages  in  dispute.  By  an  arrangement  between  Adams, 
Estell  and  Kanouse,  Adams  conveyed  to  Kanouse  the  portion  of  the 
mortgaged  premises  embraced  in  the  disputed  mortgages.  The  money 
received  by  the  mortgagee  was  reduced  from  $1600  to  $1310;  and  to  se- 
cure this  latter  sum  Kanouse  executed  a  mortgage  to  Estell,  embracing 
the  land  conveyed  in  the  deed  from  Adams.  Estell  then  canceled  his 
$1600  mortgage,  or  delivered  it  up  to  Adams  for  that  purpose.  The 
deed  from  Adams  to  Kanouse  was  dated  the  2d  of  August,  1847.  The 
mortgage  bears  the  same  date.  Both  were  acknowledged  on  the  12th  of 
August,  1847.  The  mortgage  was  recorded  on  the  2d  day  of  Septem- 
ber of  the  same  year.  The  deed  has  never  been  recorded.  It  is  alleged 
that  it  was,  some  time  after  its  delivery,  destroyed  by  Kanouse.  Ka- 
nouse entered  into  the  possession  of  the  premises  under  his  deed, 
and  continued  in  possession  until  after  the  execution  of  the  mortgage 
under  which  the  complainants  claim  their  priority. 

The  complainants  had  a  claim  against  Pamela  Adams  and  Calvin  A, 
Kanouse  for  debt,  and  were  prosecuting  it  at  law.  Kanouse  offered 
to  compromise  this  claim.  He  stated  to  the  complainants,  through  his 
attorney,  that  Pamela  Adams  owned  certain  premises,  which  Stephen 
Adams  held  in  his  name  in  trust  for  her,  and  that  the  premises  were 
sold  to  one  Ferdinand  G.  Simpson,  who  was  to  give  to  Pamela  Adams 
a  mortgage  of  sixteen  hundred  dollars  for  the  purchase  money.  Ka- 
nouse offered  this  mortgage  to  the  complainants,  if  they  would  ad- 
vance, in  cash,  the  balance  of  the  mortgage  money,  after  deducting 
their  claim  of  $797.98.  The  proposition  was  acceded  to;  and  on  the 
6th    of    December,    1849,    Stephen    Adams,    at    the    procurement   of 


844  DERIVATIVE  TITLES  (Part  2 

Kanouse,  executed  a  deed  to  Simpson  for  the  same  premises  which  he, 
Adams,  had,  as  before  stated,  conveyed  to  Kanouse,  and  Kanouse 
had  mortgaged  to  Estell.  Simpson  executed  a  mortgage  to  Pamela 
Adams  to  secure  the  purchase  money  of  $1600,  and  she  assigned  the 
mortgage  to  the  complainants,  who,  in  consideration  of  the  assign- 
ment, receipted  their  claim  of  $797.98,  and  for  the  balance  gave  their 
promissory  notes,  at  a  short  date,  which  were  paid  at  maturity.  The 
deed  to  Simpson  and  the  mortgage  from  Simpson  to  Pamela  Adams 
were  duly  recorded.  The  deed  from  Stephen  Adams  to  Kanouse, 
through  which  Mary  Estell,  who  holds  the  mortgage  from  Kanouse  to 
Noah  Estell,  claims  title,  has  never  been  recorded. 

Both  parties  claim  under  Stephen  Adams.  The  complainants'  mort- 
gage is  subsequent,  in  date  and  execution,  to  that  of  the  defendant, 
Mary  Estell ;  but  the  complainants  claim  priority,  on  the  ground  that, 
at  the  time  their  mortgage  was  executed,  the  deed  from  Adams  to 
Kanouse  was  not  recorded ;  and  the  title  on  the  record  being  in  Stephen 
Adams,  they  insist  that  the  recording  of  the  Estell  mortgage  afforded 
no  notice  of  its  existence. 

On  behalf  of  Mary  Estell,  it  is  insisted  that  the  mortgage  she  holds 
is  protected  by  the  very  language  of  the  statute ;  that  the  statute  de- 
clares mortgage  void  and  of  no  effect  against  a  subsequent  bona  fide 
purchaser  or  mortgagee  for  a  valuable  consideration,  unless  such  mort- 
gage shall  be  recorded  at  or  before  the  time  of  recording  the  said  mort- 
gage or  conveyance  to  such  subsequent  purchaser  or  mortgagee,  and 
that,  in  point  of  fact,  the  Estell  mortgage  was  recorded  before  the  sub- 
sequent mortgage  held  by  the  complainants.  But,  by  the  very  language 
of  the  statute,  the  deed  from  Adams  to  Kanouse  is  void  and  of  no 
effect  against  the  subsequent  deed  from  Adams  to  Simpson,  because 
it  was  not  recorded  at  or  before  the  time  of  recording  the  subsequent 
deed  to  Simpson.  The  defendant  Mary  Estell,  then,  claims  under  a 
grantor  whose  deed  is  void,  and  who,  at  the  time  of  the  conveyance, 
had  no  title  against  the  grantor  under  whom  the  complainants  hold. 
Now  it  could  be  of  no  advantage  to  Simpson  that  his  recorded  deed 
should  be  valid  against  the  unregistered  deed  of  Kanouse,  if  a  gran- 
tee under  the  latter  could  claim  a  title  superior  to  that  of  Simpson's  or 
of  his  grantee. 

The  whole  object  of  the  registry  acts  is  to  protect  subsequent 
purchasers  and  encumbrancers  against  previous  conveyances  which  are 
not  recorded,  and  to  deprive  the  holder  of  the  previous  unregistered 
conveyance,  &c.,  of  the  right,  which  his  priority  in  execution  would 
have  given  him  at  the  common  law.  But  if  the  construction  contend- 
ed for  be  adopted,  this  object  is  totally  defeated;  the  registry  will 
afford  no  protection  to  an  innocent  purchaser.  When  one  link  in  the 
chain  of  title  is  wanting,  there  is  no  clue  to  guide  the  purchaser  in 
his  search  to  the  next  succeeding  link  by  which  the  chain  is  continued. 
The  title  upon  the  record  is  the  purchaser's  protection,  and  when  he 
has  traced  the  title  down  to  an  individual,  out  of  whom  the  record  does 


Ch.  8)  PRIORITIES  845 

not  carry  it,  the  registry  acts  make  that  title  the  purchaser's  protection. 
The  registry  of  a  deed  is  notice  only  to  those  who  claim  through  or 
under  the  grantor  by  whom  the  deed  was  executed.  Raynor  v.  Wilson, 
6  Hill  (N.  Y.)  473;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  (N.  Y.)  151; 
Murray  v.  Ballou,  1  Johns.  Ch.  (N.  Y.)  556;  Keller  v.  Nutz,  5  Serg. 
&  R.  (Pa.)  446;  Lightner  v.  Mooney,  10  Watts  (Pa.)  412;  Bates  v. 
Norcross,  14  Pick.  (Mass.)  224;  Tilton  v.  Hunter,  24  Me.  29;  Crock- 
ett V.  Maguire,  10  Mo.  34 ;  Leiby  v.  Wolf,  10  Ohio,  83.  Nor  will  a 
purchaser  be  bound  to  take  notice  of  the  record  of  a  deed  executed  by  a 
prior  grantee  whose  own  deed  has  not  been  recorded.  Embury  v.  Con- 
ner, 2  Sandf .  98 ;  Roberts  v.  Borune,  23  Me.  165,  39  Am.  Dec.  614. 
And  where  the  deed  of  a  vendor  is  not  recorded,  the  record  of  a  mort- 
gage given  by  the  vendee  for  the  purchase  money  will  not  be  notice 
to  a  subsequent  purchaser.  Veazie  v.  Parker,.  23  Me.  170;  Pierce  v. 
Taylor,  23  Me.  246.  For  in  any  such  case  the  purchaser  is  without  a 
clue  to  guide  him  in  searching  the  record.    2  A.  L.  C.  in  Eq.  129. 

The  mortgage  to  Estell  is  void  against  the  complainants'  mortgage, 
if  Simpson,  under  whom  the  complainants  hold,  was  a  bona  fide  pur- 
chaser for  a  valuable  consideration  without  notice  of  the  Estell  mort- 
gage.    *     *     *  11 


RANKIN  V.  MILLER. 
(Supreme  Court  of  Iowa,  1876.    43  Towa,  11.) 

Action  in  chancery  to  establish  and  quiet  in  plaintiff  the  title  to 
the  undivided  eleven-eighteenths  of  two  hundred  and  eighty  acres  of 
land  in  Black  Hawk  county.  The  relief  was  granted  as  to  one  hundred 
and  sixty  acres  of  the  land,  and  denied  as  to  the  remainder.  Both  par- 
ties appeal.     The  facts  of  the  case  are- stated  in  the  opinion. 

Beck,  J.  The  admitted  or  established  facts,  as  we  find  them  in  this 
case,  are  as  follows : 

I.  Plaintiff's  title  is  based  upon  the  following  conveyances  and  facts : 

1.  November  24,  1853,  Benjamin  H.  Towner  entered,  at  the  United 
States  land  office  at  Dubuque,  all  the  lands  in  controversy,  which  are 
all  in  section  13,  township  88,  range  13  west,  and  received  a  certificate 

11  Tbe  balance  of  the  opinion  is  omitted.  The  court  concluded  that  Simpson 
was  a  bona  fide  purchaser  for  value. 

Van  Di^^ere  v.  Mitchell,  45  S.  C.  127,  22  S.  E.  759  (1895),  contra. 

Eliza  K.,  the  owner,  conveyed  to  her  brother,  F.  K.,  who  mortgaged  the 
premises  to  P.  P.  recorded.  R.,  after  examining  the  records  and  satisfjung 
himself  that  Eliza  had  title,  took  a  deed  from  her,  paying  value  therefor.  Be- 
cause F.  K.  had  been  acting  as  his  sister's  agent,  E.  procured  a  quitclaim  deed 
covering  the  same  premises  from  him.  The  day  after  the  delivery  of  the  two 
deeds  to  R.,  the  deed  from  Eliza  to  F.  K.  was  placed  on  record.  In  an  action 
by  P.  to  foreclose  his  mortgage,  R.  claimed  protection  as  a  bona  fide  purchaser 
for  value  without  notice.     AVas  he  entitled  to  such  protection? 

A.  conveys  to  B.,  who  at  once  gives  back  a  purchase  money  mortgage.  The 
mortgage  is  recorded,  but  the  deed  from  A,  to  B.  is  not.  A.  later  conveys  to  X., 
a  bona  fide  purchaser  for  value  \^ath  no  knowledge  of  the  deed  to  B.  Does  he 
have  constructive  notice?  See  Veazie  v.  Parker,  23  Me.  170  (1843) ;  Hart  v. 
Gardner,  81  Miss.  650,  33  South.  442,  497  (1902). 


846  DERIVATIVE  TITLES  (Part  2 

of  entry,  issued  by  the  proper  officer  in  the  usual  form.    On  the  18th 
of  October,  1858,  a  patent  was  issued  to  him  for  the  lands. 

2.  August  13,  1854,  Towner  sold  and  conveyed  the  lands  to  Daniel 
J.  and  Armstrong  Rankin.  The  deed  is  lost,  but  was  filed  and  recorded 
in  Black  Hawk  county.  The  name  Ambrose  appears  in  the  record  in- 
stead of  Armstrong,  the  christian  name  of  one  of  the  grantees.  This 
is  alleged  to  be  a  mistake,  either  in  the  deed  or  record  thereof,  and 
it  is  averred  that  the  conveyance  was  intended  to  be  to  Armstrong 
Rankin,  who  was  intended  to  be  described  therein  as  one  of  the 
grantees. 

3.  Armstrong  Rankin  died  February  1st,  1855,  leaving  plaintiff  as  his 
only  heir.    His  widow,  Nancy  M.,  rnarried  Cyrus  Hays  in  1858. 

4.  Daniel  J.  Rankin  re-conveyed  his  undivided  interest  in  the  lands 
to  Towner,  who,  in  July  28,  1861,  sold  and  conveyed  the  undivided 
one-half  thereof  then  held  by  him  to  plaintiff's  mother,  Nancy  M. 
Hays. 

5.  In  1863  Nancy  M.  Hays  died,  leaving  children  by  her  second  hus- 
band, Cyrus  Hays,  who  subsequently  married  a  second  wife,  Sarah, 
and  died  February  5th,  1868,  leaving  one  child,  the  fruit  of  the  last 
marriage.  Sarah  Hays  died  in  1868.  Plaintiff,  as  heir  of  his  father 
and  mother,  claims  title  to  eleven-eighteenths  of  the  land  in  contro- 
versy. 

Alleged  defects  and  objections  to  deeds,  under  which  plaintiff's 
ancestors  acquired  title  to  the  lands,  will  be  hereafter  stated  when 
they  come  up  for  consideration  in  this  opinion. 

n.  The   defendants'   title    rests   upon   the   following   conveyances : 

1.  October  13,  1853,  Abraham  Turner,  who  is  a  defendant  in  this 
action,  entered  one  hundred  and  twenty  acres  of  land  in  section  13, 
township  88,  north  range  12  west,  at  the  United  States  land  office  at 
Dubuque,  and  received  the  usual  certificate  of  entry,  which  is  number 
15,700. 

2.  On  the  28th  day  of  February,  1854,  which  it  will  be  remarked 
was  subsequent,  in  point  of  time,  to  the  entry  of  the  land  under  which 
plaintiff  claims,  the  register  of  the  Dubuque  land  office,  upon  application 
of  Turner,  changed  the  duplicate  certificate  of  entry.  No.  15,700,  re- 
turned in  his  office,  which  had  been  issued  upon  Turner's  entry  of  the 
land  in  section  13,  township  88,  north  range  12  west,  so  that  it  read 
"north  range  13  west,"  being  the  same  description  as  that  of  part  of 
the  lands  before  entered  by  the  grantor  of  plaintiff's  ancestor. 

3.  A  patent  was  issued  to  Turner  for  one  hundred  and  twenty  acres 
of  land  in  range  13,  June  15,  1854. 

4.  In  1868  a  patent  was  issued  to  Turner  for  the  land  in  range 
12,  and  he  afterwards  sold  and  conveyed  it  to  E.  K.  Ware  and  D.  J. 
Coleman. 

5.  The  defendants  claim  the  land  in  section  13,  township  88,  north 
lange  13  west,  which  is  covered  by  Turner's  patent,  under  that  in- 
strument and  conveyances  by  Turner  and  his  grantees. 


Ch.  8)  PRIORITIES  847 

6.  They  claim  title  to  the  other  lands  in  controversy  under  a  sale 
and  deed  by  the  guardian  of  plaintiff,  made  in  1865. 

7.  For  a  part  of  the  same  land  they  also  set  up  a  tax  title  based  upon 
a  sale  of  the  land  by  the  county  treasurer,  for  1862,  for  the  delinquent 
taxes  of  1860,  and  a  treasurer's  deed  thereon,  dated  May  14,  1864. 
The  remainder  of  tliese  lands  are  covered  by  a  tax  deed  recorded  in 
1865,  which  is  also  set  up  by  defendants. 

III.  It  is  necessary  to  consider  separately  the  conflicting  claims 
and  titles  set  up  by  the  respective  parties  to  the  land  in  controversy. 
The  first  point  of  inquiry  involves  the  validity  of  the  conflicting  patents 
covering  a  part  of  the  land. 

1.  The  validity  of  Towner's  entry  cannot  be  questioned.  At  that 
time  the  full  and  perfect  title  to  the  land,  both  legal  and  equitable, 
was  in  the  government.  There  had  been  no  sale  or  transfer  of  any  in- 
terest in  it  which  defeated  the  right  of  the  government  to  dispose  of 
it,  in  the  manner  all  public  lands  are  disposed  of  as  provided  by  law. 
If  we  admit  that  Turner's  first  entry  of  lands  was  made  through  mis- 
take and  the  subsequent  alteration  of  his  duplicate  certificate  was 
without  fraud,  Towner's  entry  is  not  defeated  by  these  considera- 
tions. Turner  did  not  enter  the  land  in  range  thirteen,  and  the  cer- 
tificate issued  to  him  did  not  cover  it.  There  was,  therefore,  no  sale  of 
that  land  to  him  by  the  government.  The  land  was  then  sold  to  Towner 
and  a  proper  certificate  issued  to  him.  Surely,  it  cannot  be  claimed  that 
the  register  of  the  land  office,  simply  upon  the  application  of  Turner, 
without  proof  of  the  mistake  which  the  evidence  shows  was  not  made, 
had  authority  to  change  the  entry  and  alter  Turner's  certificate  so  as 
to  defeat  Towner's  prior  entry.  The  register  was  clothed  with  no  au- 
thority to  change  the  entry,  and  in  no  case  can  such  a  thing  be  done 
by  any  officer  of  the  government  where  the  land  to  be  covered  by 
the  change  has  been  before  sold.  U.  S.  Rev.  St.  §§  2369  (U.  S.  Comp. 
St.  1913,  §  4777),  2372.  The  government  having  sold  the  land  to 
Towner,  no  other  disposition  thereof  can  be  made.  Arnold  v.  Grimes, 
2  Iowa,  1 ;  Cavender  v.  Smith,  3  G.  Greene,  349,  56  Am.  Dec.  541. 

2.  "The  patent  for  lands  belonging  to  the  United  States,  when  issued 
to  a  party  vests  in  him  the  perfect  legal  title,  which  relates  back  to 
the  date  of  entry  of  the  land.  The  entry  of  the  land  and  the  issuing  of 
the  certificate  of  location  transferred  to  him  at  the  time  all  the  prop- 
erty held  by  the  government  in  the  land,  and  conferred  upon  him  all 
'the  equity'  thereto  which  is  an  absolute  and  unconditional  right  to  the 
land."  Waters  v.  Bush,  42  Iowa,  255 ;  Heirs  of  Klein  v.  Argenbright, 
26  Iowa,  493;  Cavender  v.  Heirs  of  Smith,  5  Iowa,  157. 

3.  The  patent  to  Turner,  having  been  issued  contrary  to  law,  for  land 
which  had  been  before  sold  by  the  government,  is  void,  and  the  pat- 
entee acquired  no  rights  under  it.  Stoddard  et  al.  v.  Chambers,  2 
How.  284,  11  L.  Ed.  269;  Cunningham  v.  Ashley  et  al.,  14  How.  377, 
14  L.  Ed.  462 ;   Wright  v.  Rutgers,  14  Mo.  585  ;•  Boring  v.  Lemmon, 


848  DERIVATIVE  TITLES  (Part  2 

5  Har.  &  J.  (Md.)  223;  Perry  v.  O'Hanlon,  11  Mo.  585,  49  Am.  Dec. 
100;  State  v.  Delesdinier,  7  Tex.  76;   Todd  v.  Fisher,  26  Tex.  239. 

IV.  The  conchision  is  reached  that  Turner's  patent  conferred  no 
right  whatever  in  the  land  which  he  could  convey  to  another.  We  do 
not  understand  that  counsel  deny  the  correctness  of  this  conclusion, 
but  seek  to  avoid  its  consequences  on  the  ground  that  defendants  are 
innocent  purchasers  without  notice  of  plaintiff's  title.  This  position  is 
based  upon  the  fact  that  Towner's  deed  to  plaintiff's  ancestor,  ex- 
ecuted in  1854,  was  acknowledged  before  a  justice  of  the  peace  of 
the  .state  of  Illinois  and  the  certificate  of  acknowledgment,  in  other 
respects,  does  not  comply  with  the  requirements  of  the  law,  especially 
in  failing  to  show  that  the  grantor  acknowledged  the  deed  to  be  his 
voluntary  act.  At  that  date,  the  acknowledgment  of  deeds  for  lands  in 
this  state  could  not  be  made  before  justices  of  the  peace  in  other  states. 
The  deed  was  recorded  October  1,  1855.  Defendants  insist  that,  as 
this  deed  was  insufficiently  acknowledged,  though  recorded,  it  does 
not  impart  notice  to  them  of  plaintiff"'s  title.    Code  1873,  §  1942. 

Let  us  consider  for  a  moment  the  position  of  the  parties  as  claim- 
ants of  the  land  in  dispute.  They  claim  under  distinct  chains  of  titles, 
having,  however,  a  common  origin  in  the  government.  The  government 
made  two  grants  of  the  land ;  on  one,  plaintiff's  title  rests,  the  other 
is  the  foundation  of  defendants'  title.  The  deed  from  the  purchaser 
to  plaintiff's  ancestor,  under  whom  plaintiff  claims,  is  defectively  ac- 
knowledged and  it  is  not,  therefore,  lawfully  recorded.  Now,  no  ques- 
tion of  registry,  or  want  of  notice,  can  arise  upon  the  assurances  given 
by  the  gr  vernment  for  the  land.  Arnold  v.  Grimes,  2  Iowa,  1 ;  Heirs 
of  Klein  v.  Argenbright,  26  Iowa,  493 ;  David  v.  Rickabaugh,  32 
Iowa,  540.  Does  the  law  protect  defendants  because  they  had  no 
notice  by  the  record  of  the  deed  from  the  grantee  of  the  government 
to  the  plaintiff's  ancestor? 

Code  1873,  §  1941,  the  statute  requiring  the  registry  of  deeds,  is  in 
the  following  language :  "No  instrument  affecting  real  estate,  is  of  any 
validity  against  subsequent  purchasers  for  a  valuable  consideration, 
without  notice,  unless  recorded  in  the  office  of  the  recorder  of  the  coun- 
ty, etc."  The  statute  protects  subsequent  purchasers  and  no  others. 
The  very  language  of  the  statute  leads  to  the  conclusion  that  there 
are  such  as  claim  under  the  chain  of  title  of  which  the  deeds  affected 
by  the  provision  are  a  part.  It  is  intended  to  protect  the  purchaser 
whose  deed  is  recorded,  against  another  conveyance  that  is  not  record- 
ed, and  contemplates  the  case  of  conflicting  deeds  conveying  title  and 
having  a  common  source.  No  protection  is  intended  against  an  inde- 
pendent title,  distinct  from  that  upon  which  the  recorded  deed  is 
based.  The  conclusion  is  supported  by  the  consideration  that,  in  such 
cases,  notice  in  fact  by  a  record  thereof  could  not  be  given.  No  point 
of  commencement  for  an  examination  of  the  records  would  be  sug- 
gested to  the  party  seeking  information  therein.  The  indexes  of  the 
record,  which  under  our  statute  are  a  part  of  the  record  and  serve  to 


Ch.  8)  PRIORITIES  845 

impart  notice,  would  give  no  aid  in  such  an  examination.  It  is,  there- 
fore, our  conclusion  that  the  term  subsequent  purchaser,  occurring  in 
the  statute,  is  used  to  describe  purchasers  claiming  under  some  common 
grantor.  This  position  is  supported  by  the  following  authorities : 
Long  V.  Dollarhide,  24  Cal.  218;  Roe  et  al.  v.  Neal  et  al.,  Dud.  (Ga.). 
168 ;  Fenno  v.  Sayre,  3  Ala.  458 ;  Whittington  v.  Wright,  9  Ga.  23 ; 
Tilton  V.  Hunter,  24  Me.  29 ;  Crockett  et  al.  v.  Maguire,  10  Mo.  34 ; 
Ely  V.  Wilcox,  20  Wis.  530,  91  Am.  Dec.  436;  Rodgers  v.  Burchard 
et  al.,  34  Tex.  441,  7  Am.  Rep.  283;  Losey  et  al.  v.  Simpson  et  al.,  11 
N.  J.  Eq.  246;  Bates  v.  Norcross,  14  Pick.  (Mass.)  224;  Quirk  v. 
Thomas  et  al.,  6  Mich.  76;  Murray  v.  Ballou,  1  Johns.  Ch.  (N.  Y.) 
566. 

If,  then,  the  record  of  the  deed  would  not  impart  notice  provided 
for  by  law,  defendants  cannot  claim  any  strength  for  their  title  be- 
cause it  was  not  in  fact  recorded;  they  are  not  prejudiced  thereby. 
It  is  a  case  where  the  principles  of  registry  do  not  apply.^^     *     *     * 


YOUNGBLOOD  v.  VASTINE. 
(Supreme  Court  of  Missouri,  1870.    46  Mo.  239,  2  Am.  Rep.  509.) 

Bliss,  J-  Sarah  G.  Wright,  deceased,  by  herself  and  her  trustee, 
on  the  20th  day  of  July,  1859,  executed  to  E.  J.  Xaupi,  in  trust,  to  se- 
cure the  payment  of  a  promissory  note  of  same  date  for  $3700,  given 
to  Joseph  Tuley,  then  living,  a  deed  of  certain  real  estate,  her  separate 
property,  situate  on  the  corner  of  Pine  and  Eighth  streets,  in  St.  Louis, 
which  deed  was  not  put  upon  record  until  the  19th  of  October,  1866. 
The  said  Joseph  Tuley  and  Sarah  G.  Wright  died  in  1860  and  1861, 
and  on  the  first  of  October,  1865,  D.  Robert  Barclay,  as  trustee  for 
Mrs.  Ann  A.  Macdonald,  and  with  her  funds,  purchased  said  prop- 
erty of  the  heirs  of  said  Sarah  G.  Wright,  and  received  a  warranty 
deed  of  the  same,  which  was  recorded  April  28,  1866.  It  appears  from 
the  evidence  that  neither  Barclay  nor  Mrs.  Macdonald  had  any  knowl- 
edge of  the  trust  deed  to  Xaupi ;  that  the  records  were  examined  before 
the  purchase  to  see  if  there  were  any  encumbrances  upon  the  property ; 
that  a  full  consideration  was  paid  for  it ;  that  the  estate  of  Mrs.  Wright 
had  been  settled  by  the  public  administrator,  and  that  all  debts  present- 
ed had  been  paid,  but  this  note  was  not  among  them. 

12  The  remainder  of  the  opinion  relating  to  other  matters  is  omitted. 

In  nn  action  by  the  assignee  of  a  mortgage  to  foreclose  same,  the  mortgagor 
sought  to  set  off  certain  claims  held  by  him  against  the  mortgagee,  which  elaimg 
had  been  acquired  after  the  assignment  of  the  mortgage  to  the  complainant. 
The  mortgagor  had  no  knowledge  of  the  assignment,  but  the  assignment  had 
been  properly  recorded  prior  to  the  acquisition  of  the  claims.  A  statute  of  the 
state,  adopting  the  prevalent  equity  nile,  provided  that,  "in  the  case  of  an  as- 
signment of  a  thing  in  action,  the  action  of  the  assignee  shall  be  without  preju- 
dice to  any  set-off  or  other  defense,  existing  at  the  time  of  or  before  notice  of 
the  assignment."  Should  the  mortgagor  be  allowed  his  set-off? 
Aig.Pkop. — 54 


850  DERIVATIVE  TITLES  (Part  2 

This  suit  was  brought  by  the  administrator  of  Tuley  to  foreclose  his 
trust  deed,  and  the  contest  arises  in  consequence  of  the  failure  on  the 
pan  of  Xaupi,  to  whom  it  was  made,  to  place  it  upon  record.  Had 
the  second  deed  been  executed  by  Mrs.  Wright  while  living,  there 
would  be  no  question  that  it  would  hold  against  the  unrecorded  deed. 
But  in  some  of  tlie  reported  cases  upon  the  subject  it  is  held  that  the 
same  preference  can  not  be  given  to  tlie  second  deed  if  made  by  the 
heirs  of  the  first  grantor.  I  confess  I  am  not  struck  with  the  force 
of  the  reasoning  upon  which  the  distinction  is  made,  for  it  is  based 
upon  the  idea  that  the  second  deed  is  inoperative  because  nothing 
descended  to  the  heirs,  and  hence  they  had  nothing  to  convey.  If  that 
be  so,  it  was  because  nothing  was  left  in  the  ancestor  that  could  de- 
scend; that  his  whole  estate  was  divested  by  the  first  deed.  -If  his 
whole  estate  was  so  divested,  how  could  a  second  deed,  if  made  by 
himself,  be  operative?  Yet  it  is  not  disputed  that  such  second  deed 
would  convey  the  estate,  notwithstanding  the  first. 

Yet  the  distinction  is  made  by  some  of  our  most  respectable  courts, 
and  it  is  apparently  recognized  by  this  court.  In  Hill  et  al.  v.  Meeker, 
24  Conn.  211,  the  majority  of  the  court  held  that  the  unrecorded  deed 
from  the  ancestor  so  divested  him  of  his  title  that  his  son  and  heir 
"took  nothing  by  inheritance  that  he  could  convey  or  mortgage  to  a 
bona  fide  purchaser  who  had  no  knowledge  of  the  deeds."  The  case 
is  a  much  harder  one  than  the  one  at  bar,  and  the  decision  is  based 
upon  "a  clear  distinction  between  a  purchaser  from  him  (the  ancestor) 
and  one  from  his  heir,  Arza.  In  relation  to  a  purchase  from  Arza, 
the  difficulty  is  that  he  never  had  any  title." 

The  same  distinction  was  made  in  Hancock  v.  Beverly's  Heirs,  in  6 
B.  Mon.  (Ky.)  531.  The  judge  delivering  the  opinion  acknowledges 
the  question  to  be  a  doubtful  and  difficult  one,  and  in  reasoning  upon 
the  subject  says :  "It  has  always  been  held  that  a  deed,  though  never 
recorded,  is  good  between  the  parties,  and  as  to  all  the  world,  except 
creditors  and  innocent  purchasers  for  value.  The  grantor  in  such  deed 
can  pass  no  title  to  his  subsequent  donee  or  devisee,  and  the  law  will 
pass  none  to  his  heir,  because  there  was  none  in  him,  after  his  convey- 
ance, to  be  passed,  but  in  favor  of  a  creditor  or  bona  fide  purchaser 
for  value.  Does  tlie  conveyance  of  the  heir,  or  donee  or  devisee,  who, 
as  such,  never  had  title,  made  to  a  purchaser  for  value  and  without 
notice,  operate  to  divest  the  title  conveyed  by  the  unrecorded  deed,  and, 
bringing  it  in  another  line  of  conveyances,  vest  it  in  subsequent  pur- 
chasers?" This  question  the  court,  on  the  authority  of  Ralls  v.  Gra- 
ham, 4  T.  B.  Mon.  (Ky.)  120,  answers  in  the  negative. 

Our  own  court,  in  McCamant  v.  Patterson,  39  Mo.  110,  111,  seems 
to  recognize  the  same  doctrine,  though,  from  the  peculiarity  of  the 
title  to  the  New  Madrid  grants,  the  question  in  its  general  application 
could  not  have  arisen  in  that  case. 

Other  authorities,  however,  equally  respectable,  have  held  that  the 
heir  of  the  grantor  in  an  unrecorded  deed  can  convey  a  good  title  to 


Ch.  8)  PRIORITIES  851 

an  innocent  purchaser  f(5r  value.  The  Supreme  Court  of  Pennsyl- 
vania, in  Powers  v.  McFerran,  2  Serg.  &  R.  44,  in  giving  its  opinion, 
remarks  that  "the  purchaser  for  a  valuable  consideration,  seeing  no 
deed  on  record,  had  a  right,  under  the  sanction  of  the  recording  act, 
to  take  for  granted  that  the  whole  estate  had  descended."  The  same 
question  was  raised  in  McCulloch  v.  Eudaly,  3  Yerg.  (Tenn.)  346,  and 
in  sustaining  a  deed  from  the  heir,  the  following  language  is  used  by 
the  court:  "But  it  is  contended  tliat  this  (the  saving  to  suosequent  pur- 
chasers) only  applies  to  cases  where  the  purchase  should  be  made  from 
the  same  vendor  by  whom  the  prior  deed  was  executed.  It  is  true  the 
subsequent  purchaser  must  hold  under  the  same  title ;  but  whether 
he  holds  under  the  ancestor  or  heir,  it  can  make  no  difference.  The 
estate  is  thrown  upon  the  heii:  with  all  the  rights  the  ancestor  enjoyed 
and  subject  to  all  encumbrances  he  had  created  on  it." 

The  subject  has  also  been  considered  in  the  State  of  Illinois,  in 
Kennedy  v.  Northup,  15  111.  148;  and  after  reviewing  the  authorities, 
the  title  from  the  heir  was  sustained.  "After  much  reflection,"  says 
the  judge  who  delivered  the  opinion,  "I  am  satisfied  that  this  is  the 
true  and  proper  construction  of  the  statute.  It  meets  the  object  de- 
signed to  be  accomplished  by  the  law,  and  is  within  the  reason  which 
gave  rise  to  the  enactment.  It  was  the  object  of  tlie  Legislature  to 
make  patent  the  titles  to  real  estate,  that  purchasers  might  know  what 
titles  they  were  acquiring.  Where  a  deed  is  not  recorded,  the  title 
is  apparently  still  in  the  grantor,  and  the  law  authorizes  purchasers 
who  are  ignorant  of  the  conveyance  to  deal  with  him  as  the  real  owner. 
In  case  of  his  death  the  heir  becomes  the  apparent  owner  of  the  legal 
title,  and  it  is  equally  important  and  equally  as  just  that  the  public 
may  be  allowed  to  deal  with  him  as  with  tlie  original  grantor  if  liv- 
ing." 

There  is  no  substantial  difference  between  the  statutes  of  tlie  dif- 
ferent States  whose  decisions  I  have  quoted  and  our  own.  Different 
language  is  used,  but  the  same  result  is  aimed  at;  some  expressly  de- 
claring unrecorded  deeds  to  be  void  against  subsequent  purchasers, 
while  ours  negatively  does  the  same  thing  by  saying  that  no  such  in- 
■  strument  shall  be  valid  except  between  the  parties  thereto,  etc. 

The  discrepancy  in  the  authorities  has  doubtless  arisen  in  part  from 
the  endeavor  to  reconcile  the  statute  with  the  subtleties  of  the  old  law 
of  tenures,  which  treats  a  title  as  a  substantial  entity,  and  almost  ap- 
plies to  it  the  powers  of  locomotion.  The  attempt  involves  the  rea- 
soner  in  contradictions,  for  in  one  breath  it  is  said  that  the  title  passes 
by  the  deed  to  the  grantee  and  still  so  remains  with  the  grantor,  that 
in  a  contingency  it  may  again  pass  from  him  to  another  grantee,  but 
if  the  grantor  dies  it  can  not  descend  like  all  his  other  titles,  but  goes 
back  to  tlie  original  grantee,  with  whom  it  has  always  remained. 

It  would  be  more  rational  to  say  that  the  law  controls  the  manner 
in  which  rights  of  property  are  acquired,  and  that  it  will  not  favor  any 
mode  of  acquirement  that  shall  encourage  fraud.     Thus  purchasers 


S52  DERIVATIVE  TITLES  (Part  2 

are  required  to  spread  upon  record  the  evidence  of  their  ownership; 
and  if  others  suffer  from  their  neglect,  the  law  will  not  recognize  such 
ownership.  Or,  in  using  the  language  of  the  law  of  tenures,  we  might 
perhaps  say  tliat  in  a  conveyance  the  absolute  title  rests  with  the  gran- 
tor and  his  heirs  in  abeyance,  to  vest  irrevocably  only  upon  tlie  record 
of  the  deed,  and  that  it  will  vest  in  the  first  grantee  in  condition  to 
receive  the  grant,  who  shall  so  place  it  upon  record. 

The  Circuit  Court  held  that  the  defendant's  deed  from  the  heirs  of 
Mrs.  Wright  conveyed  the  whole  estate,  whereupon  the  plaintiff*  took 
a  nonsuit,  and  his  motion  to  set  the  same  aside  was  overruled.  In  this 
the  court  committed  no  error,  and  the  other  judges  concurring,  the 
judgment  will  be  affirmed.^' 


MORSE  v.  CURTIS. 

(Supreme  Judicial  Court  of  Massachusetts,  18S5.    140  Mass.  112,  2  N.  E.  929, 

54  Aju.  Rep.  456.) 

Morton,  C.  J.  This  is  a  writ  of  entry.  Both  parties  derive  their 
title  from  one  Hall.  On  August  8,  1872,  Hall  mortgaged  tlie  land  to 
the  demandant.  On  September  7,  1875,  Hall  mortgaged  the  land  to 
one  Clark,  who  had  notice  of  the  earlier  mortgage.  The  mortgage  to 
Clark  was  recorded  on  January  31,  1876.  The  mortgage  to  the  de- 
mandant was  recorded  on  September  8,  1876.  On  October  4,  1881, 
Clark  assigned  his  mortgage  to  the  tenant,  who  had  no  actual  notice 
of  the  mortgage  to  the  demandant.  The  question  is  which  of  these 
titles  has  priority. 

The  same  question  was  directly  raised  and  adjudicated  in  the  two 
cases  of  Connecticut  v.  Bradish,  14  Mass.  296,  and  Trull  v.  Bigelow, 
16  Mass.  406,  8  Am.  Dec.  144.  These  adjudications  establish  a  rule 
of  property  which  ought  not  to  be  unsettled,  except  for  the  strongest 
reasons. 

It  is  true,  that,  in  the  later  case  of  Flynt  v.  Arnold,  2  Mete.  619, 
Chief  Justice  Shaw  expresses  his  individual  opinion  against  the  sound- 
ness of  these  decisions;  but  in  that  case  the  judgment  of  the  court 
was  distinctly  put  upon  another  ground,  and  his  remarks  can  only  be 
considered  in  the  light  of  dicta,  and  not  as  overruling  the  earlier  ad- 
judications. 

Upon  careful  consideration,  the  reasons  upon  which  the  earlier  cases 
were  decided  seem  to  us  the  more  satisfactory,  because  they  best  fol- 
low the  spirit  of  our  registry  laws  and  the  practice  of  the  profession 

13  See  Lyon  v.  Gleason,  40  Minn.  434,  42  N.  W.  286  (1889) ;  Wliittemore  v. 
Bean,  6  N.  II.  47  (1S32),  where  it  was  the  devisee  of  the  grantor  in  the  unrecord- 
ed deed  that  made  the  later  deed  to  the  good  faith  purchaser. 

Suppose  the  grantor  in  the  unrecorded  deed  himself  makes  a  deed  to  one 
who  takes  either  as  a  volunteer  or  with  knowledge  of  the  earlier  deed,  and  tliat 
grantee  in  turn  conveys  to  a  good  faith  purchaser.  What  would  be  the  position 
■of  the  grantee  in  the  unrecorded  deedV 


Ch.  8)  PRIORITIES  853 

nnder  them.  The  earliest  registry  laws  provided  that  no  conveyance 
of  land  shall  be  good  and  effectual  in  law  "against  any  other  person 
or  persons  but  the  grantor  or  grantors,  and  their  heirs  only,  unless  the 
deed  or  deeds  thereof  be  acknowledged  and  recorded  in  manner  afore- 
said."   St.  1783,  c.  Z7,  §  4. 

Under  this  statute,  the  court,  at  an  early  period,  held  that  the  re- 
cording was  designed  to  take  the  place  of  the  notorious  act  of  livery 
of  seisin;  and  that,  though  by  the  first  deed  the  title  passed  out  of 
the  grantor,  as  against  himself,  yet  he  could,  if  such  deed  was  not 
recorded,  convey  a  good  title  to  an  innocent  purchaser  who  received 
and  recorded  his  deed.  But  the  court  also  held  that  a  prior  unrecorded 
deed  would  be  valid  against  a  second  purchaser  who  took  his  deed 
with  a  knowledge  of  the  prior  deed,  thus  engrafting  an  exception  upon 
the  statute.  Reading  of  Judge  Trowbridge,  3  Mass.  575;  Marshall 
V.  Fisk,  6  Mass.  24,  4  Am.  Dec.  76. 

This  exception  was  adopted  on  the  ground  that  it  was  a  fraud  in 
the  second  grantee  to  take  a  deed,  if  he  had  knowledge  of  the  prior 
deed.  As  Chief  Justice  Shaw  forcibly  says,  in  Lawrence  v.  Stratton, 
6  Cush.  163,  the  rule  is  "put  upon  the  ground,  that  a  party  with  such 
notice  could  not  take  a  deed  without  fraud,  the  objection  was  not  to 
the  nature  of  the  conveyance,  but  to  the  honesty  of  the  taker;  and, 
therefore,  if  the  estate  had  passed  through  such  taker  to  a  bona  fide 
purchaser,  without  fraud,  the  conveyance  was  held  valid." 

This  exception  by  judicial  exposition  was  afterwards  engrafted  upon 
the  statutes,  and  somewhat  extended,  by  the  Legislature.  Rev.  St.  c. 
59,  §  28 ;  Gen.  St.  c.  89,  §  3 ;  Pub.  St.  c.  120,  §  4.  It  is  to  be  ob- 
served that,  in  each  of  these  revisions,  it  is  provided  that  an  unrecorded 
prior  deed  is  not  valid  against  any  persons  except  the  grantor,  his 
heirs  and  devisees,*  "and  persons  having  actual  notice"  of  it.  The 
reasons  why  the  statute  requires  actual  notice  to  a  second  purchaser, 
in  order  to  defeat  his  title,  is  apparent;  its  purpose  is  that  his  title 
shall  not  prevail  against  the  prior  deed,  if  he  has  been  guilty  of  a  fraud 
upon  the  first  grantee ;  and  he  could  not  be  guilty  of  such  fraud,  un- 
less he  had  actual  notice  of  the  first  deed. 

Now,  in  tlie  case  before  us,  it  is  found  as  a  fact  that  the  tenant  had 
no  actual  knowledge  of  the  prior  mortgage  to  the  demandant  at  the 
time  he  took  his  assignment  from  Clark ;  but  it  is  contended  that  he 
had  constructive  notice,  because  the  demandant's  mortgage  was  re- 
corded before  such  assignment. 

It  was  held  in  Connecticut  v.  B radish,  ubi  supra,  that  such  record 
was  evidence  of  actual  notice,  but  was  not  of  itself  enough  to  show 
actual  notice,  and  to  charge  the  assignee  of  the  second  deed  with  a 
fraud  upon  the  holder  of  the  first  unrecorded  deed.  This  seems  to  us 
to  accord  with  the  spirit  of  our  registry  laws,  and  with  the  uniform 
understanding  of  and  practice  under  them  by  the  profession. 

These  laws  not  only  provide  that  deeds  must  be  recorded,  but  they 
also  prescribe  the  method  in  which  the  records  shall  be  kept  and  in- 


854  DERIVATIVE  TITLES  (Part  2 

dexes  prepared  for  public  inspection  and  examination.  Pub.  St.  c.  24, 
§,§  14—26.  There  are  indexes  of  grantors  and  grantees,  so  that,  in 
searching  a  title,  the  examiner  is  obHged  to  run  down  the  list  of  gran- 
tors, or  run  backward  through  the  Hst  of  grantees.  If  he  can  start 
with  an  owner  who  is  known  to  have  a  good  title,  as,  in  the  case  at  bar, 
he  could  start  with  Hall,  he  is  obliged  to  run  through  the  index  of 
grantors  until  he  finds  a  conveyance  by  the  owner  of  the  land  in  ques- 
tion. After  such  conveyance,  the  former  owner  becomes  a  stranger 
to  the  title,  and  the  examiner  must  follow  down  the  name  of  the  new 
owner  to  see  if  he  has  conveyed  the  land,  and  so  on.  It  would  be  a 
hardship  to  require  an  examiner  to  follow  in  the  indexes  of  grantors 
the  names  of  every  person  who,  at  apy  time,  through  perhaps  a  long 
chain  of  title,  was  the  owner  of  the  land. 

We  do  not  think  this  is  the  practical  construction  which  lawyers  and 
conveyancers  have  given  to  our  registry  laws.  The  inconveniences  of 
such  a  construction  would  be  much  greater  than  would  be  the  incon- 
venience of  requiring  a  person,  who  has  neglected  to  record  his  prior 
deed  for  a  time,  to  record  it,  and  to  bring  a  bill  in  equity  to  set  aside 
the  subsequent  deed,  if  it  was  taken  in  fraud  of  his  rights. 

The  better  rule,  and  the  one  the  least  likely  to  create  confusion  of 
titles,  seems  to  us  to  be,  that,  if  a  purchaser,  upon  examining  the  reg- 
istry, find  a  conveyance  from  the  owner  of  the  land  to  his  grantor, 
which  gives  him  a  perfect  record  title  completed  by  what  the  law,  at 
the  time  it  is  recorded,  regards  as  equivalent  to  a  livery  of  seisin,  he  is 
entitled  to  rely  upon  such  record  title,  and  is  not  obliged  to  search  the 
records  afterwards,  in  order  to  see  if  there  has  been  any  prior  un- 
recorded deed  of  the  original  owner. 

This  rule  of  property,  established  by  the  early  case  of  Connecticut 
V.  Bradish,  ought  not  to  be  departed  from,  unless  'conclusive  reasons 
therefor  can  be  shown. 

We  are  therefore  of  opinion,  that,  in  the  case  at  bar,  the  tenant  has 
the  better  title ;  and,  according  to  the  terms  of  the  report,  the  verdict 
ordered  for  the  demandant  must  be  set  aside,  and  a 

New  trial  granted. 


WOODS  V.  GARNETT. 
(Supreme  Court  of  Mississippi,  1894.    72  Miss.  78,  16  South.  390.) 

Bill  to  cancel  defendant's  claim  to  certain  land  and  to  recover  pos- 
session. Decree  for  defendants.  Complainant  appeals.  The  opinion 
sufficiently  states  the  facts. 

Cooper,  C.  J.,  delivered  the  opinion  of  the  court. 

The  parties  to  this  suit  all  claim  title  from  one  Riley,  who,  in  1891, 
was  the  owner  of  the  land  in  controversy.  On  the  ninth  day  of  Novem- 
ber, A.  D.  1891,  Riley  executed  a  deed  of  trust,  whereby  he  conveyed 
the  land  to  one  M.  H.  Trantham,  as  trustee,  to  secure  the  payment  of  a 


Ch.  8)  PRIORITIES  855 

promissory  note  of  that  date  for  $3,500,  payable  to  the  order  of  C.  H. 
Pond.  This  deed  contained  the  usual  power  of  sale  if  default  should 
be  made  in  the  payment  of  the  secured  debt  at  maturity,  and  also  pro- 
vided that  Pond,  or  the  assignee  of  the  note,  might  at  pleasure  sub- 
stitute any  other  person  in  lieu  of  the  trustee,  Trantham.  This  deed 
was  acknowledged  before  Trantham,  the  trustee,  who  was  a  justice  of 
the  peace  of  the  county.  The  certificate  stated  only  that  the  grantor 
acknowledged  that  he  had  "signed"  the  deed,  omitting  the  words  "and 
delivered,"  as  required  by  law.  This  deed  was  filed  for  record  in  the 
proper  ofiice  on  the  twelfth  day  of  November. 

(Dn  May  6,  1892,  Riley  executed  a. deed  of  trust  to  one  Oliver,  as 
trustee,  to  secure  the  payment  of  a  debt  to  W.  G.  Cocke  &  Co.  of 
%Z97.22.  This  deed  also  contained  a  power  of  sale  if  the  debt  secured 
should  not  be  paid  at  maturity.  Before  accepting  this  security,  W.  D. 
Lester,  a  member  of  the  firm  of  Cocke  &  Co.,  examined  the  records, 
and  there  saw  and  read  the  prior  deed,  but  was  of  opinion  that,  by 
reason  of  the  defective  acknowledgment,  and  because  it  had  been  taken 
by  the  trustee  therein,  it  was  not  entitled  to  registration,  and,  being  of 
that  opinion,  decided  to  accept  the  deed  to  secure  his  firm. 

Some  time  prior  to  October,  1892,  Pond  assigned  the  note  executed 
by  Riley  payable  to  him  to  the  complainant,  Chas.  R.  Woods.  About 
this  time  it  was  discovered  that  the  deed  of  trust  by  which  this  note 
had  been  secured  had  not  been  so  acknowledged  as  to  entitle  to  regis- 
tration, and  thereupon  Woods  exhibited  his  bill  in  equity  to  enjoin 
Riley  from  disposing  of  the  lands  to  his  injury,  and  an  injunction  was 
allowed.-  The  attorney  of  Woods,  being  of  opinion  that  a  re-execution 
and  acknowledgment  of  the  deed  by  Riley,  and  another  registration 
thereof,  would  serve  the  same  purpose  as  the  injunction,  sent  the  clerk 
of  the  chancery  court  to  see  Riley  and  get  a  re-acknowledgment  of  the 
deed,  which  he  did  on  October  7,  1892,  when  the  deed  was  on  that  day 
again  filed  for  record  and  recorded  on  the  twenty-fourth. 

On  November  16,  1892,  Riley  and  his  wife  conveyed  the  land  to  the 
appellee,  Mrs.  L.  A.  Garnett.  On  November  19,  1892,  the  land-  was 
sold  under  each  of  the  two  deeds  of  trust,  the  sales  being  at  different 
places.  At  the  sale  under  the  deed  of  trust  first  made,  but  junior  in 
record  (the  Pond  deed),  the  appellant  became  the  purchaser.  At  the 
sale  under  the  deed  junior  in  date,  but  the  first  recorded,  the  appellee, 
Mrs.  D.  L.  Garnett,  purchased.  The  appellant  exhibited  his  bill  in 
this  cause  to  cancel  the  titles  of  the  defendants,  Mrs.  D.  L.  Garnett  and 
Mrs.  L.  A.  Garnett,  as  clouds  upon  his  own,  and  to  recover  possession 
of  the  land,  they  having  been  let  into  possession  by  Riley. 

Mrs.  D,  L.  Garnett  defends  the  suit  upon  the  ground  that  she  was  a 
bona  fide  purchaser,  without  notice  of  the  deed  of  trust  under  which 
complainant  claims  title.  Mrs.  L.  A.  Garnett  defends  only  as  to  160 
acres  of  the  land,  which,  she  says,  was  the  homestead  of  Riley  at  the 
time  he  executed  the  deed  of  trust  to  secure  the  note  to  Pond,  which 
deed,  she  contends,  was  void  as  to  the  homestead,  because  Mrs.  Riley 


856  DERIVATIVE  TITLES  (Part  2 

did  not  join  her  husband  in  the  conveyance,  as  is  required  by  law  for 
the  sale  or  incumbrance  of  the  homestead.  In  the  controversy  between 
the  appellant  and  Mrs.  D.  L.  Garnett,  the  question  involved  is  one  of 
law,  the  facts  being  undisputed.  In  the  controversy  with  Mrs.  L.  A. 
Garnett,  the  question  is  purely  of  fact,  the  parties  not  differing  as  to 
the  law,  which  is  plain,  and  not  susceptible  of  controversy. 

1.  Were  Cocke  &  Co.  bona  fide  incumbrancers  of  the  land,  without 
notice  of  the  Pond  mortgage  ?  It  has  been  generally  held  by  the  Amer- 
ican courts,  though  with  some  exceptions,  that,  notwithstanding  the 
registry  acts,  one  who  has  notice  of  such  facts  in  reference  to  an  un- 
recorded conveyance,  as  devolves  on  him,  as  an  honest  man,  the  duty 
of  making  further  inquiry,  is  to  be  held  as  having  such  knowledge  as 
such  inquiry,  honestly  made,  would  have  disclosed.  In  those  states 
in  which  this  rule  does  not  apply,  it  will  be  found  that  the  registry  acts 
require  actual  knowledge  of  the  unrecorded  conveyance.  One  who 
sees  upon  the  record,  and  reads  an  instrument  improperly  recorded, 
because  not  acknowledged  or  proved  as  required  by  law,  cannot  claim 
to  be  a  bona  fide  purchaser  of  the  property  therein  described.  He 
knows  that  what  he  sees  is  the  copy  of  an  instrument  purporting  to 
have  been  made  by  the  grantor  to  the  grantee.  Good  faith  requires 
that  he  shall  prosecute  further  inquiry,  and,  if  he  negligently  or  wil- 
fully neglects  so  to  do,  he  is  to  be  held  to  have  known  all  the  facts  to 
which  that  inquiry  would  have  led.  The  notice  to  Lester  by  reading 
the  improperly  recorded  mortgage,  was  notice  to  his  firm  of  the  ex- 
istence of  that  conveyance,  and  Cocke  &  Co.  were  not  bona  fide  pur- 
chasers of  the  property.^* 

2.  Where  a  conveyance  is  made  to  one  who  fails  to  record  his  deed 
until  after  another  has  received  and  recorded  a  conveyance  from  the 
same  grantor,  but  with  notice  of  the  first  deed,  what  are  the  rights  of 
the  first  grantee  against  a  purchaser  from  the  second,  where  such 
purchaser,  having  no  actual  knowledge  of  the  facts,  buys  after  the 
record  of  the  prior  deed?  This  question  is  determinable  by  a  construc- 
tion of  our  registry  act,  for,  at  the  common  law,  a  second  purchaser 
of  the  fee  could  take  nothing,  since,  by  the  first  conveyance,  the  gran- 
tor would  have  divested  himself  of  all  his  estate,  and  would  have  noth- 
ing to  convey.  Basset  v.  Nosworthy,  2  Ldg.  Cas.  in  Eq.  110,  and  note; 
Coke  on  Littleton,  390d. 

By  our  registry  act  it  is  declared  that  the  instruments  thereby  re- 
quired to  be  recorded  "shall  be  void  as  to  all  creditors  and  subsequent 
purchasers  for  valuable  consideration  without  notice,  unless  they  shall 
be  acknowledged  or  proved  and  lodged  with  the  clerk  of  the  chancery 
court  of  the  county,  to  be  recorded  in  the  same  manner  that  other  con- 
veyances are  required  by  this  act  to  be  acknowledged  or  proved  and  re- 
corded ;  but  the  same,  as  between  the  parties  and  their  heirs,  and  as 
to  all  subsequent  purchasers  with  notice,  or  without  valuable  considera- 

1*  But  see  Nordman  v.  Kau,  infra,  p.  909. 


Ch.  8)  PRIORITIES  857 

tion,  shall,  nevertheless,  be  valid  and  binding."  Code  1880,  §  1212; 
Code  1892,  §  2457.  "Every  conveyance,  covenant,  agreement,  bond, 
mortgage,  and  deed  of  trust  shall  take  effect,  as  to  all  subsequent  pur- 
chasers for  a  valuable  consideration  without  notice,  and  as  to  all  cred- 
itors, only  from  the  time  when  delivered  to  the  clerk  to  be  recorded." 
Code  1880,  §  1213 ;  Code  1892,  §  2458.  In  Massachusetts  and  Vermont 
it  is  held  that  a  purchaser  is  not  bound  to  examine  the  record,  after 
the  date  of  a  recorded  conveyance,  to  discover  whether  the  grantor 
therein  has  made  another  conveyance  prior  in  time  but  junior  in  record, 
but  may  safely  purchase  from  the  grantee  in  the  first  recorded  convey- 
ance, if  he,  the  purchaser,  has  no  actual  notice  of  the  prior  deed,  and  no 
notice  of  facts  which  makes  it  his  duty  to  prosecute  inquiry.  Connecti- 
cut V.  Bradish,  14  Mass.  296 ;  Trull  v.  Bigelow,  16  Mass.  406,  8  Am. 
Dec.  144;  Morse  v.  Curtis,^  140  Mass.  112,  2  N.  E.  929,  54  Am.  Rep. 
456 :  Day  v.  Clark,  25  Vt.  397.  And  this  is  said  to  be  the  more  rea- 
sonable rule  by  the  annotators  of  the  leading  cases  in  equity  (Le  Neve 
V.  Le  Neve,  2  Ldg.  Cas.  180),  and  by  Mr.  Jones  (1  Jones  on  Mortg. 
§  574.)  The  decided  weight  of  authority  is,  however,  to  the  contrary, 
though  Mr.  Jones  cites  none  of  them  as  supporting  the  contrary  view, 
except  the  New  York  decisions.  Among  others,  the  following  cases 
may  be  noted :  Van  Rensselaer  v.  Clark,  17  Wend.  (N.  Y.)  25,  31  Am. 
Dec.  280;  Westbrook  v.  Gleason,  '79  N.  Y.  23;  Clark  v.  Mackin,  30 
Hun  (N.  Y.)  411;  Mahoney  v.  Middleton,  41  Cal.  41;  English  v.  Wa- 
ples,  13  Iowa,  57 ;  Fallass  v.  Pierce,  30  Wis.  443 ;  Erwin  v.  Lewis,  32 
Wis.  276;  Van  Aken  v.  Gleason,  34  Mich.  477;  Bayles  v.  Young,  51  111. 
127. 

The  question  has  never  been  decided  in  this  state,  though  in  Harring- 
ton V.  Allen,  48  Miss.  492,  there  is  a  dictum  in  which  Judge  Simrall, 
mistaking  the  facts  of  his  case,  seems  to  favor  the  Massachusetts  rule. 
The  decisions  in  Massachusetts  and  Vermont,  while  resulting  in  practi- 
cally the  same  end,  proceed  on  irreconcilable  and  opposite  principles. 
In  Massachusetts  it  is  held  that  the  purchaser  from  the  grantee  in  the 
deed  junior  in  date,  but  senior  in  record,  need  not  examine  the  records 
after  the  date  of  the  registration  of  the  conveyance  to  his  grantor. 
Morse  v.  Curtis,  140  Mass.  112,  2  N.  E.  929,  54  Am.  Rep.  456.  In  Ver- 
mont it  is  held  that  he  is  bound  by  the  constructive  notice  afforded  by 
the  registration  of  the  first  deed,  that  it  is  notice  to  him  of  the  fact  that 
a  deed  prior  to  that  of  his  grantor  had  been  made;  but  is  not  notice 
that  his  grantor  had  notice  of  the  first  deed ;  and  so  the  conveyance  to 
the  purchaser  from  the  second  grantee  is  preferred  in  Vermont,  not 
because  the  purchaser  is  himself  a  purchaser  without  notice,  for  the 
registration  of  the  prior  deed  is  notice  of  its  existence,  nor  because  his 
grantor  was  a  purchaser  without  notice,  for  that  may  or  may  not  be 
true,  but  because  the  purchaser  did  not  know  that  his  grantor  was  not 
a  bona  fide  purchaser,  and  thus,  under  the  Vermont  decision,  one  may 
secure  protection  as  though  he  were  a  bona  fide  purchaser  when  neither 
he  nor  any  one  under  and  through  whom  he  derives  title  was  in  fact 


858  DERIVATIVE  TITLES  (Part  2 

such  purchaser.    This  rule  has  no  recognition  except  in  Vermont,  so 
far  as  we  have  discovered. 

We  think  the  Massachusetts  decisions  are  erroneous,  because  they 
hold  that  one  not  bound  by  the  registry  law  is  protected  by  it.  But  for 
the  registry  law,  where  one  has  conveyed  his  legal  title,  he  has  nothing 
left  to  convey  to  another,  and  that  other,  with  or  without  notice  of  the 
prior  conveyance,  would  get  nothing,  for  his  grantor  had  nothing  to 
convey.  Now,  the  statute  comes  and  provides  that,  though  a  convey- 
ance of  the  class  named  in  the  statute  may  be  made,  it  shall  as  to  cer- 
tain persons,  viz.,  creditors  and  purchasers  without  notice,  be  valid  only 
from  a  certain  time,  viz.,  the  time  when  it  is  filed  for  record.  In  other 
words,  the  operation  of  the  unrecorded  conveyance  is  supended  until 
it  shall  be  recorded,  as  against  creditors  and  purchasers  without  notice, 
and,  when  recorded,  it  does  not  operate  by  relation  as  against  such 
persons  from  the  day  of  its  execution,  but  is  effective  only  from  and  of 
the  date  of  its  delivery  for  record.  But  when  filed  for  record  it  has 
full  scope  and  effect  against  the  world.  One  who  buys  after  that  event 
can  find  no  protection  in  the  statute,  for  its  terms  have  been  complied 
with  by  the  holder  of  the  adverse  title.  It  is  no  answer  to  say  that  it  is 
inconvenient  to  the  purchaser  to  examine  a  long  and  voluminous  rec- 
ord, made  after  the  record  of  the  title  of  his  grantor.  To  this  the  suffi- 
cient reply  is  that,  but  for  the  registry  acts,  he  would  not  have  even 
the  protection  which  such  records  afford,  but  would  deal  at  his  peril 
with  his  grantor,  and  secure  only  such  title  as  he  might  assert.  If  that 
grantor  Jiad  good  title  because  a  purchaser  for  value  without  notice, 
that  is  a  defense  to  his  vendee ;  but  if  such  grantor  was  not  such  pur- 
chaser, then  the  validity  of  the  title  he  conveys  must  depend  upon  the 
character  of  his  vendee,  and  if  such  vendee  is  not  a  bona  fide  purchaser 
under  the  common  law  or  the  statute,  we  cannpt  perceive  from  what 
source  a  principle  can  be  deduced  which  will  afford  him  protection. 
It  seems  clear  to  us  that  one  who  buys  an  estate  cannot  invoke  the  pro- 
tection of  the  registry  act  as  against  a  deed  recorded  under  such  act  at 
the  time  of  his  purchase.^' 


TEFFT  V.  MUNSON. 

(Court  of  Appeals  of  New  York,  1S74.     57  N.  Y.  97.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court  in 
the  third  judicial  department,  affirming  a  judgment  in  favor  of  defend- 
ants entered  upon  the  decision  of  the  court  upon  trial  at  Special  Term. 

This  was  an  action  to  restrain  defendants,  loan  commissioners  for 
Washington  county,  from  foreclosing  a  mortgage  executed  to  tliem  by 
Martin  B.  Perkins  and  wife. 

15  The  balance  of  the  opiuion,  which  discusses  the  position  and  rights  of  Mrs. 
L.  A.  (Jarnett,  is  omitted. 

See  Fallass  v.  Pierce,  30  Wis.  443  (1872),  a  most  interesting  case. 


Ch.  8)  PRIORITIES  859 

On  the  18th  day  of  January,  1848,  Gamaliel  Perkins  purchased  of 
Cortland  Hovvland  certain  lands  in  Washington  county,  which  were 
conveyed  to  him  by  warranty  deed  recorded  March  7,  1848,  in  the 
clerk's  office  in  said  county.  Gamaliel  Perkins,  immediately  after  his 
purchase,  let  his  son,  Martin  B.  Perkins,  into  possession  of  the  premises, 
who  forged  a  deed  of  the  land  from  his  father  to  himself  and  placed 
it  upon  record  in  the  clerk's  office  of  said  county,  May  27,  1850.  On 
the  1st  day  of  October,  1850,  Martin  B.  and  his  wife  executed  a  mort- 
gage upon  said  land  to  the  loan  commissioners  of  said  county,  to  secure 
the  sum  of  $1,000  loaned  to  him.  This  mortgage  contained  covenants 
that  Martin  B.  and  his  wife  were  lawfully  seized  of  a  good,  sure,  per- 
fect, absolute  and  indefeasible  estate  of  inheritance  in  the  premises, 
and  that  they  were  free  and  clear  of  and  from  all  former  and  other 
gifts,  grants,  bargains,  sales,  liens,  etc. ;  and  this  mortgage  was,'  on  the 
day  of  its  date,  duly  recorded  in  the  book  kept  by  the  loan  commis- 
sioners, as  required  by  law.  On  the  23d  of  January,  1860,  a  deed  of 
said  lands  bearing  date  April  1,  1853,  was  recorded  in  the  county  clerk's 
office,  which  purported  to  be  executed  by  Martin  B.  and  wife  to  his 
father.  On  the  16th  day  of  December,  1859,  Gamaliel  Perkins  convey- 
ed said  land  to  Martin  B.,  by  deed  recorded  January  14,  1860.  Until 
this  conveyance  from  his  father  Martin  B.  had  no  title  to  tlie  land,  al- 
though he  remained  in  possession  of  the  same  from  1848.  On  the  31st 
day  of  January,  1867,  Martin  B.,  being  still  in  possession  of  the  lands, 
conveyed  them  to  the  plaintiff,  who  paid  full  value  for  the  same  with- 
out any  actual  notice  of  the  mortgage  to  the  loan  commissioners.  The 
deed  to  the  plaintiff  was  recorded  February  9,  1867. 

The  court  below  decided  that  plaintiff  was  not  entitled  to  tne  relief 
sought  and  directed  a  dismissal  of  the  complaint.  Judgment  was  per- 
fected accordingly. 

Earl,  C.  The  plaintiff  claims  that  the  mortgage  to  the  loan  com- 
missioners has  no  validity  as  against  him,  and  that  his  deed  has  priority 
over  it  under  the  laws  in  reference  to  the  registry  of  deeds  and  mort- 
gages. It  is  a  principle  of  law,  not  now  open  to  doubt,  that,  ordinarily, 
if  one  who  has  no  title  to  lands,  nevertheless  makes  a  deed  of  convey- 
ance, with  warranty,  and  afterward  himself  purchases  and  receives  the 
title,  the  same  will  vest  immediately  in  his  grantee  who  holds  his  deed 
with  warranty  as  against  such  grantor  by  estoppel.  In  such  case  the 
estoppel  is  held  to  bind  the  land,  and  to  create  an  estate  and  interest 
in  it.  The  grantor  in  such  case,  being  at  the  same  time  the  warrantor 
of  the  title  which  he  has  assumed  the  right  to  convey,  will  not,  in  a 
court  of  justice,  be  heard  to  set  up  a  title  in  himself  against  his  own 
prior  grant ;  he  will  not  be  heard  to  say  that  he  had  not  the  title  at  the 
date  of  the  conveyance,  or  that  it  did  not  pass  to  his  grantee  in  virtue 
of  his  deed.  Wark  v.  Willard,  13  N.  H.  389;  Kimball  v.  Blaisdell,  5 
N.  H.  533,  22  Am.  Dec.  476 ;  Somes  v.  Skinner,  3  Pick.  (Mass.)  52 ; 
Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528,  567,  49  Am.  Dec.  189 ; 
Jackson  v.  Bull,  1  Johns.  Cas.  81,  90;  White  v.  Patten,  24  Pick.  (Alass.) 


8(50  DERIVATIVE  TITLES  (Part  2 

324;  Pike  v.  Galvin,  29  Me.  183.  And  the  doctrine,  as  will  be  seen  by 
these  authorities,  is  equally  well  settled  that  the  estoppel  binds  not 
only  the  parties,  but  all  privies  in  estate,  privies  in  blood  and  privies  in 
law;  and,  in  such  case,  the  title  is  treated  as  having  been  previously 
vested  in  the  grantor,  and  as  having  passed  immediately  upon  the  ex- 
ecution of  his  deed,  by  way  of  estoppel.  In  this  case,  Martin  B.  Per- 
kins conveyed  the  lands  to  the  loan  commissioners,  by  mortgage  with 
warranty  of  title,  and  thereby  became  estopped  from  disputing  that, 
at  the  date  of  the  mortgage,  he  had  the  title  and  conveyed  it;  and  this 
estoppel  applied  equally  to  the  plaintiff  to  whom  he  made  a  subsequent 
conveyance,  by  deed,  after  he  obtained  the  title  from  his  father,  and 
who  thus  claimed  to  be  his  privy  in  estate.  The  plaintiff  was  estopped 
from  denying  that  his  grantor,  Martin  B.  Perkins,  had  the  title  to  the 
land  at  the  date  of  the  mortgage,  and  he  must,  therefore,  for  every 
purpose  as  against  tlie  plaintiff,  be  treated  as  having  the  title  to  tlie 
land  at  that  date. 

I,  therefore,  can  see  no  difficulty  in  this  case,  growing  out  of  the  law 
as  to  the  registry  of  conveyances.  Martin  B.  Perkins,  having  title, 
made  the  mortgage  which  was  duly  recorded.  He  then  conveyed  to- 
his  father  and  the  deed  was  recorded.  His  father  then  conveyed  to 
him  and  the  deed  was  recorded.  He  then  conveyed  to  the  plaintiff  and 
his  deed  was  recorded.  Thus  the  title  and  record  of  the  mortgage 
were  prior  to  the  title  and  record  of  the  deed  to  plaintiff,  and  the  prior- 
ity claimed  by  plaintiff  cannot  be  allowed.  Assuming  it  to  be  the  rule 
that  the  record  of  a  conveyance  made  by  one  having  no  title,  is,  ordi- 
narily, ^  nullity,  and  constructive  notice  to  no  one ;  the  plaintiff  cannot 
avail  himself  of  this  rule,  as  he  is  estopped  from  denying  that  the 
mortgagor  had  the  title  at  the  date  of  the  mortgage.  The  case  of 
White  V.  Patten,  supra,  is  entirely  analogous  to  this.  In  that  case,  the 
plaintiff  derived  his  title  from  a  mortgage,  made  to  him  by  one  Tliayer, 
containing  covenants  of  seizin,  warranty,  etc.,  and  recorded  February 
19,  1834.  At  the  time  of  the  execution  of  this  mortgage  the  title  was 
not  in  Thayer,  but  in  one  Perry,  his  father  in  law.  Perry  afterward, 
by  deed,  recorded  August  2,  1834,  conveyed  the  land  in  fee  simple 
to  Thayer,  who  conveyed  the  land  by  mortgage  to  the  defendant,  re- 
corded the  same  day.  The  counsel  for  the  defendant  used  the  same 
arguments  in  a  great  measure,  which  have  been  urged  upon  our  atten- 
tion by  the  counsel  for  the  plaintiff  in  this  case,  both  as  to  the  title  and 
the  registry  of  the  mortgages;  and,  yet  the  court  held  in  a  very  able 
opinion,  that  the  plaintiff  had  tlie  prior  and  better  title. 

I  am,  therefore,  of  opinion  that  the  judgment  should  be  affirmed,, 
with  costs. 

Reynolds,  C.  (dissenting.)  When  Martin  B.  Perkins  gave  the  mort- 
gage to  the  loan  commissioners  he  had  possession,  but  no  title  to  the 
mortgaged  property.  He  had  forged  a  deed  of  the  premises  from  Ga- 
maliel Perkins  to  himself,  and  caused  it  to  be  put  on  record  in  the 
clerk's  office  of  the  county  of  Washington ;  and  by  this  device,  imposed 


Ch.  8)  PRIORITIES  861 

upon  the  loan  commissioners.  The  forged  deed,  was,  of  course,  a  nul- 
Hty,  and  could  not  in  the  eye  of  the  law,  have  any  effect  by  way  of 
constructive  notice  or  otherwise.  It  conveyed  nothing,  and  was  not  a 
"conveyance"  witliin  the  meaning  of  tlie  recording  acts,  and  did  not 
affect  the  title  to  the  land  "in  law  or  equity."  It  may  be  assumed, 
therefore,  that  the  loan  commissioners  took  the  mortgage,  knowing  that 
Martin  B,  Perkins  had  no  title,  it  being  very  clear  that  they  acquired  no 
legal  rights  by  being  imposed  upon,  against  any  one,  save  Martin  B. 
Perkins.  They  got  no  interest  in  the  land,  either  in  law  or  equity.  It 
is  not  in  principle,  unlike  the  case  of  a  forged  negotiable  promissor}- 
note,  where  a  bona  fide  holder  for  value  can  have  no  protection.  It 
follows,  therefore,  that  tlie  entr>'  of  the  mortgage  in  tlie  books  of  the 
loan  office  at  the  time  it  was  made,  was  of  no  legal  consequence  what- 
ever, except  as  against  the  mortgagor.  It  was  no  notice  under  the  re- 
cording acts ;  for  it  did  not  in  the  remotest  degree  affect  the  title  to  the 
land  described  in  it.  The  mortgage  contained  a  covenant  of  title,  and 
it  seems  to  be  clear,  that  a  title  subsequently  acquired  by  Martin  B. 
Perkins,  would,  ordinarily,  inure  by  estoppel,  or  otherwise,  to  the  ben- 
efit, of  the  mortgagees  if  other  rights  have  not  intervened.  The  title 
to  the  mortgaged  premises  was  in  Gamaliel  Perkins,  from  the  18th  of 
January,  1848,  to  the  16th  of  December,  1859,  when  he  conveyed  it  to 
Martin  B.  Perkins.  By  this  conveyance,  the  mortgage  given  by  Martin 
B.  Perkins  to  the  loan  commissioners,  in  October,  1850,  acquired  legal 
vitality  by  way  of  estoppel,  or  in  some  other  form,  and  if  it  had  then 
been  in  any  proper  form  recorded,  constructive  notice  of  its  existence, 
as  a  valid  lien  upon  the  property,  would  have  been  given  to  all  the 
world.  Itis  urged,  that  there  was  no  necessity  of  making  any  further 
record  of  the  mortgage,  because  the  title  in  the  mortgagees  comes  un- 
der the  warranty  by  way  of  rebutter  or  estoppel.  This  will  not  do. 
It  is  sufficient,  to  say,  that  by  virtue  of  the  transactions  under  which 
the  defendants  look  to  enforce  the  lien  of  the  mortgage,  the  title  to  the 
land  is  affected,  and  such  a  paper  must  be  properly  put  on  record  to 
bind  subsequent  purchasers  in  good  faith. 

If  this  be  not  so,  it  is  impossible  to  see  how  a  subsequent  bona  fide 
purchaser  can  have  any  protection,  and  when  it  is  said  to  be  impossible 
to  record  the  estoppel  which  gave  the  mortgage  vitality ;  it  may  be  an- 
swered; that,  until  the  estoppel  became  operative,  the  mortgage  was  a 
nullity  and  the  record  of  it  no  notice  whatever.  When,  however,  Mar- 
tin B.  Perkins  obtained  the  title  to  the  premises,  it  became  by  some 
operation  of  law  vaHd  against  him;  but  it  was  of  no  greater  force  or 
effect,  than  if  he  had  on  that  day  given  it  to  the  loan  commissioners. 
It  then,  for  the  first  time,  affected  the  title  to  the  land,  and  in  order  to 
bind  subsequent  purchasers,  in  good  faith,  must  be  duly  recorded,  and 
this  was  not  done  in  any  such  way  as  to  operate  as  constructive  notice 
under  the  recording  acts. 

It  is  not  questioned,  but  that  the  plaintiff  is  to  be  protected  as  a  bona 
fide  purchaser,  for  value,  unless  the  mortgage  given  in  1850,  and  then 


862  DERIVATIVE  TITLES  (Part  2 

entered  in  proper  order  in  the  books  of  tlie  loan  office,  which,  at  the 
time,  did  not  affect  the  title  to  the  land  in  any  way,  was  constructive 
notice  of  the  lien.  It  is  well  settled,  that  a  conveyance  that  is  not  duly 
recorded  according  to  law,  even  when  the  actual  title  has  passed,  is 
not  effectual  as  constructive  notice.  Frost  v.  Beekman,  1  Johns.  Ch. 
288;  Lessee  of  Heister  v.  Fortner,  2  Bin.  (Pa.)  40,  4  Am.  Dec.  417. 
Much  less  can  it  be,  that  a  conveyance  which  does  not  affect  the  title, 
can  give  any  legal  notice  whatever.  In  the  very  best  aspect  of  the  de- 
fendant's case,  the  record  of  the  mortgage  was  made  out  of  the  order 
required  by  law,  and  failed  to  give  notice  to  anybody  dealing  with  the 
title  to  the  land.  N.  Y.  Life  Ins.  Co.  v.  White,  17  N.  Y.  469 ;  Sawyer 
V.  Adams,  8  Vt.  172,  30  Am.  Dec.  459.  In  this  view,  the  deed  of  the 
plaintiff  was  first  recorded,  and  he  is  entitled  to  protection  in  his  title. 

The  judgment  should  be  reversed,  with  costs,  the  mortgage  declared 
no  lien  upon  the  land  of  the  plaintiff,  and  the  loan  commissioners  per- 
petually enjoined  from  attempting  to  enforce  it. 

For  affirmance.  Earl,  Gray  and  Johnson,  CC. 

For  reversal,  Lott,  Ch.  C,  and  Re;ynolds,  C. 

Judgment  affirmed.^' 


WHEELER  V.  YOUNG. 

(Supreme  Court  of  Errors  of  Connecticut,  1903.     76  Conn.  44,  55  Atl.  670.) 

Action  to  foreclose  a  mortgage  and  for  other  equitable  relief,  brought 
to  the  Superior  Court  in  Fairfield  County  and  tried  to  the  court, 
George  W.  Wheeler,  J.;  facts  found  and  judgment  rendered  for  the 
defendant  Young,  upon  his  cross-complaint,  and  appeal  by.  tlie  plain- 
tiff. 

Hall,  J.  The  plaintiff  asks  for  a  judgment  of  foreclosure  under  a 
mortgage  which  on  the  13th  of  December,  1900,  was  assigned  to  him 
by  Burr  &  Knapp,  real  estate  and  mortgage  brokers  of  Bridgeport. 
Burr  &  Knapp  as  mortgagees  received  the  mortgage  from  Charles 
B.  and  Edward  H.  Marsh,  builders  in  Bridgeport,  under  the  firm 
name  of  Marsh  Brothers,  on  the  26th  of  October,  1900,  to  secure  the 
payment  of  a  loan  of  $3,500  made  by  them,  on  that  day,  to  Marsh 
Brothers.  The  mortgage  was  recorded  on  said  26th  of  October  at 
3  :01  P.  M.  Burr  &  Knapp  took  no  other  security  for  said  loan,  and 
Marsh  Brothers  are  insolvent.  Both  Burr  &  Knapp  and  the  plaintiff 
took  said  mortgage  in  good  faith,  for  value,  in  reliance  upon  the  cer- 
tificate of  an  attorney  that  the  premises  were  free  and  clear  of  all 
incumbrance,  and  that  the  legal  title  at  the  time  said  mortgage  was 
given  was  in  Marsh  Brothers,  and  without  knowledge  of  any  prior 
conveyance  by  Marsh  Brothers  to  the  grantor  of  the  defendant  Young, 
or  of  any  incumbrance  upon  said  property  prior  to  their  mortgage 

16  So.  also,  in  Jarvis  v.  Aikens.  supra,  p.  801 :  Bernardy  v.  Colonial  &  U.  S. 
Mortg.  Co.,  17  S.  D.  637,  98  N.  W.  166,  106  Am.  St.  Rep.  791  (1904). 


Ch.  8)  PRIORITIES  863 

of  October  26th.  Marsh  Brothers  obtained  title  to  the  premises  de- 
scribed in  the  mortgage  by  a  quitclaim  deed  from  Orange  Merwin  of 
Bridgeport,  which  was  executed  on  the  1st  of  May,  1900,  but  not  deliv- 
ered until  the  26th  of  October,  1900,  when  it  was  recorded  at  3  :05 
P.  M.  On  the  same  day  Marsh  Brothers  paid  to  Merwin  the  purchase 
price  for  said  property. 

Apparently  there  was  no  evidence  presented  at  the  trial,  other  than 
the  facts  herein  stated,  showing  the  precise  time  on  the  26th  of  Octo- 
ber when  either  the  deed  from  Merwin  to  Marsh  Brothers,  or  the 
mortgage  from  Marsh  Brothers  to  Burr  &  Knapp,  was  actually  de- 
livered, or  showing  whether  or  not  they  were  delivered  at  the  same  time 
and  together  given  to  the  town  clerk  to  be  recorded. 

Orange  Merwin  acquired  title  from  Marsh  Brothers  by  deed  executed 
and  recorded  September  8th,  1899.  The  defendant  Harry  S.  Young, 
who  is  now  in  possession  of  the  mortgaged  premises,  claims  under  a 
deed  from  Alfred  Young  dated  January  2d,  1901.  Alfred  Young  claim- 
ed title  under  a  warrantee  deed  from  Marsh  Brothers  dated  April 
30th,  1900,  delivered  and  recorded  on  the  7th  of  July,  1900.  Marsh 
Brothers  had,  on  the  21st  of  April,  1900,  agreed  with  said  Alfred 
Young  to  sell  him  the  lot  described  in  the  mortgage,  and  which  was 
then  owned  by  Merwin,  and  to  erect  a  house  thereon  for  $4,600,  for 
which  Alfred  Young  was  to  transfer  to  Marsh  Brothers  a  cottage 
valued  at  $3,800,  on  which  there  was  a  mortgage  of  $2,800  and  was 
to  give  a  mortgage  back,  upon  the  premises  purchased,  for  the  re- 
mainder of  the  $4,600.  In  accordance  with  such  agreement  Alfred 
Young  conveyed  the  cottage,  and  on  April  30th,  1900,  gave  to  Charles 
B.  Marsh  a  mortgage  upon  the  lot  in  question  for  $3,500,  upon  Marsh's 
promise  not  to  use  it  until  the  house  was  completed,  which  mort- 
gage Marsh,  on  the  same  day,  assigned  to  one  IMary  E.  Beardsley,  one 
of  the  defendants. 

Alfred  Young  caused  no  search  to  be  made  of  the  land  records  to 
ascertain  the  true  state  of  the  title  to  said  land,  before  receiving  said 
deed  from  Marsh  Brothers,  but  relied  upon  the  statement  of  Charles  B. 
Marsh  that  they  had  acquired  title  to  said  land.  Young  was  in  the  em- 
ploy of  Marsh  Brothers  and  did  as  Charles  B.  Marsh  directed,  in- 
tending no  fraud  toward  any  one. 

Marsh  Brothers  commenced  the  erection  of  a  house  upon  said  lot 
in  May,  1900,  which  was  apparently  completed  on  the  26th  of  Oc- 
tober, 1900,  and  Merwin  on  said  day  gave  his  said  deed  to  Marsh  Broth- 
ers as  aforesaid  to  enable  them  to  carry  out  their  said  agreement  with 
Alfred  Young,  which  was  known  to  Merwin,  and  on  his  business  rec- 
ords Merwin  treated  the  sale  as  a  sale  to  Young. 

The  plaintiff  has  purchased  for  $1,750  the  mortgage  so  assigned  by 
Marsh  Brothers  to  Mary  E.  Beardsley. 

Upon  these  facts  the  defendant  Young  claims  title  to  the  premises  in 
question,  and  by  his  cross-complaint  asks  that  the  mortgage  of  Oc- 
tober 26th,  sought  to  be  foreclosed,  be  declared  void. 


864  DERIVATIVE  TITLES  (Part  2 

No  question  is  made  and  none  can  be  made,  upon  the  facts  before 
us,  but  that  the  mortgage  deed  to  Burr  &  Knapp,  and  the  Merwin 
deed  to  Marsh  Brothers,  both  of  which  were  deHvered  on  the  26th  of 
October  as  above  stated  and  were  received  for  record  by  3  :05  P.  M. 
of  the  same  day,  were  left  for  record  within  a  reasonable  time  after 
they  were  delivered.  The  mere  fact  that  the  deed  of  Merwin  to  Alarsh 
Brothers  appears  to  have  been  received  for  record  four  minutes  later 
than  the  mortgage  of  the  latter  to  Burr  &  Knapp,  would  not  justify 
a  conclusion,  especially  under  the  circumstances  of  this  case,  that 
Marsh  Brothers  had  not  received  their  deed  from  Merwin  at  the  time 
of  the  delivery  of  the  mortgage  to  Burr  &  Knapp,  and  that  for  that 
reason  Burr  &  Knapp  took  nothing  by  their  mortgage.  Deeds  re- 
corded within  a  reasonable  time  take  effect  according  to  the  time  they 
were  actually  delivered.  Hartford  Bldg.  &  Loan  Ass'n  v.  Gold- 
reyer,  71  Conn.  95,  100,  41  Atl.  659;  Goodsell  v.  Sullivan,  40  Conn. 
83,  85 ;  Beers  v.  Hawley,  2  Conn.  467,  469.  The  deed  and  mortgage 
were  delivered  on  the  same  day.  The  mortgage  recites  the  owner- 
ship by  the  mortgagor  at  the  time  of  its  delivery  of  the  same  prop- 
erty described  in  the  deed.  Looking  at  the  record  of  the  two  deeds,  the 
mortgage  therefore  indicates  upon  its  face  that  it  was  delivered  after 
or  at  the  same  time  with  the  Merwin  deed.  The  Merwin  deed,  con- 
fessedly, not  having  been  recorded  when  the  mortgage  was  delivered, 
Burr  &  Knapp  would  be  presumed  to  have  ascertained  that  it  had  been 
delivered  before  they  made  the  loan  of  $3,500,  and  the  informa- 
tion which  they  received  to  that  effect  does  not  appear  to  have  been 
false.  As  between  the  parties  to  this  case  and  in  the  absence  of  any 
evidence  to  the  contrary — unless  the  slight  difference  in  the  time  the 
two  deeds  were  received  for  record  can  properly  be  regarded  as  conflict- 
ing evidence — the  Merwin  deed  must,  under  the  circumstances,  be 
regarded  as  having  been  delivered  either  before,  or  at  the  same  time 
with,  the  mortgage,  and  especially  since  no  one  appears  to  have  been 
deceived  to  his  injury  by  the  fact  that  the  Merwin  deed,  which  bore 
an  earlier  date  than  the  mortgage,  appears  to  have  been  received  for 
record  four  minutes  later  than  the  mortgage. 

But  we  do  not  understand  that  the  trial  court  held  that  the  Merwin 
deed  was  in  fact  delivered  after  the  mortgage,  or  held  that  it  did 
not  sufficiently  appear  that  the  Merwin  deed  was  delivered  first,  but 
decided  that  by  the  common-law  doctrine  of  estoppel  the  title  acquired 
by  Marsh  Brothers  from  Merwin  on  the  26th  of  October  inured  to  the 
benefit  of  Alfred  Young,  the  first  purchaser  from  Marsh  Brothers,  the 
moment  Marsh  Brothers  acquired  their  title,  even  assuming  that  the 
deed  from  Merwin  was  delivered  before  the  mortgage,  and  decided  that 
the  title  having  thus  vested  in  Young  there  remained  nothing  which 
Marsh  Brothers  could  convey  to  Burr  &  Knapp  by  the  mortgage,  or 
which  Burr  &  Knapp  could  assign  to  the  plaintiff.   * 

The  rule  referred  to  is,  that  where  one  without  title  has  conveyed 
with  covenants  of  warranty,  and  has  afterwards  acquired  title,  he 


Ch.  S)  PRIORITIES  865 

is  estopped  from  asserting  his  want  of  title  at  the  time  of  making 
such  first  conveyance;  and  the  contention  of  the  defendant  is,  in 
effect,  that  under  this  rule,  upon  the  facts  before  us,  not  only  Marsh 
Brothers,  but  their  mortgagees,  Burr  &  Knapp,  are  estopped  from 
denying  that  Marsh  Brothers  had  title  at  the  time  of  their  conveyance 
to  Young  on  July  7th,  1900. 

To  carry  this  doctrine  to  the  extent  of  giving  priority  to  the  title  of 
one  who  from  his  negligent  failure  to  examine  the  records  has  been 
induced  to  purchase  land  of  a  person  having  no  title,  over  that  of  one 
who  without  negligence,  in  good  faith  and  for  value,  and  without 
knowledge  of  such  prior  deed,  has  purchased,  after  his  grantor  has  ac- 
quired title  from  one  having  both  the  legal  and  record  title,  is  op- 
posed to  the  principles  of  equity  and  to  the  spirit  of  our  registry  laws. 
Bingham  v.  Kirkland,  34  N.  J.  Eq.  229,  234;  Calder  v.  Chapman,  52 
Pa.  359,  91  Am.  Dec.  163 ;  Farmers'  L.  &  T.  Co.  v.  Maltby,  8  Paige 
(N.  Y.)  361 ;  Way  v.  Arnold,  18  Ga.  181 ;  Salisbury  Savings  Society 
V.  Cutting,  50  Conn.  113,  and  reporter's  note,  page  122. 

The  doctrine  of  estoppel  is  one  which,  when  properly  applied,  "con- 
cludes the  truth  in  order  to  prevent  fraud  and  falsehood,  and  imposes 
silence  on  a  party  only  when  in  conscience  and  honesty  he  should  not 
be  allowed  to  speak."  Van  Rensselaer  v.  Kearney,  11  How.  297,  326, 
13  L.  Ed.  703.  "As  understood  and  applied  in  modern  times,  there  is 
nothing  harsh  or  unjust  in  the  law  of  estoppels.  It  cannot  be  used 
but  to  subserve  the  cause  of  justice  and  right."  Buckingham  v.  Han- 
na,  2  Ohio  St.  551,  559.  "To  allow  a  title  to  pass  by  conveyance,  ex- 
ecuted and  recorded  before  it  is  acquired,  may,  therefore,  be  a  sur- 
prise on  subsequent  purchasers,  against  which  it  is  not  in  their  power 
to  guard,  and  is  contrary  to  the  equity  which  is  the  chief  aim  of  the 
doctrine  of  estoppel  as  molded  by  the  liberality  of  modern  times."  2 
Smith's  Lead.  Cases  (7th  Amer.  Ed.)  page  701,  s.  p.  634. 

It  may  be  said  that  such  estoppel  by  deed  is  not  an  equitable  doctrine, 
but  is  a  rule  of  the  common  law  based  upon  the  recitals  or  covenants  of 
the  deed.  We  reply,  that  as  a  rule  of  law,  it  has  been  so  far  modified 
by  the  registry  laws  as  to  be  no  longer  applicable  to  cases  where  its  en- 
forcement would  work  such  an  injustice  as  to  give  priority  to  the  title 
of  one  who  negligently  failed  to  examine  the  records  before  pur- 
chasing of  a  grantor  having  no  title,  or  who  purchased  at  the  risk  that 
his  grantor  might  thereafter  acquire  title,  over  that  of  a  subsequent  pur- 
chaser in  good  faith  and  in  reliance  upon  the  title  as  it  appeared  of 
record.  "The  whole  system  of  registering  deeds  of  land  would  become 
of  no  value  if  a  purchaser  could  not  rely  upon  the  records  as  he  finds 
them."  Kinney  v.  Whiton,  44  Conn.  262,  270,  26  Am.  Rep.  462 ;  Whit- 
ing v.  Gaylord,  66  Conn.  ZZ7,  349,  34  Atl.  85,  50  Am.  St.  Rep.  87.  In 
the  case  above  cited  of  Salisbury  Savings  Society  v.  Cutting,  50  Conn. 
113,  the  question  of  whether  a  deed  with  covenants  of  title,  given  be- 
fore the  grantor  acquired  title  to  the  land  conveyed,  and  placed  on  rec- 
Aig.Prop. — 55 


8QQ  DERIVATIVE  TITLES  (Part  2 

ord,  would  prevail  over  a  deed  given  after  the  title  was  acquired,  to 
a  purchaser  taking  it  in  good  faith  and  without  knowledge  of  the 
first  deed,  was  left  an  open  question.  The  case  was  decided  upon 
the  ground  that  the  second  grantee  was  neither  a  purchaser  for  value 
nor,  because  of  certain  facts  found,  a  purchaser  without  notice  of 
the  title  of  the  first  grantee.  The  note  to  the  case  by  the  reporter, 
the  late  Mr.  Hooker,  contains  an  able  discussion  of  the  question  left 
undecided  by  the  court,  in  which  he  reaches  the  conclusion  that  the 
deed  of  the  subsequent  bona  fide  purchaser  for  value  and  without 
knowledge  of  the  prior  deed,  must  prevail,  under  our  registry  laws, 
over  that  of  the  prior  recorded  deed  of  the  negligent  grantee.  We 
think  his  reasoning  is  convincing,  and  is  especially  applicable  to  the 
facts  of  the  present  case. 

The  plaintiff  here  asks  for  the  enforcement  of  the  registry  laws. 
He  says  that  from  September  8th,  1899,  until  October  26th,  1900,  both 
the  legal  and  the  record  title  to  this  property  was  in  Orange  Merwin, 
and  that  on  said  26th  of  October  his,  the  plaintiff's,  assignors.  Burr 
&  Knapp,  purchased  from  those  who  on  the  same  day  acquired  title 
from  Merwin.  The  defendaht  asks  for  the  enforcement  of  the  law  of 
estoppel,  by  which  he  claims  that  neither  Burr  &  Knapp,  nor  the 
plaintiff,  should  be  permitted  to  assert  that  Merwin  had  title,  and 
that  Marsh  Brothers  had  no  title  from  September  8th,  1899,  until 
October  26th,  1900. 

In  inquiring  which  of  the  two  grantees.  Young  or  Burr  &  Knapp,  has 
acted  in  good  faith  and  without  negligence  in  purchasing  from  Marsh 
Brothers,  and  which  is  entitled  to  priority  of  title  under  the  registry 
laws,  we  must  examine  their  conduct  in  connection  with  certain  facts, 
with  a  knowledge  of  which  they  are  charged  by  our  registry  laws. 

The  effect  given  by  the  law  of  this  State  to  the  proper  record  of 
conveyances  of  land  has  been  very  clearly  declared  in  the  recent  case 
of  Beach  v.  Osborne,  74  Conn.  405,  412-415,  50  Atl.  1019,  1118. 
We  said  in  that  case,  as  conclusions  from  the  authorities  there  cited, 
"that  eveiy  person  who  takes  a  conveyance  of  an  interest  in  real  es- 
tate is  conclusively  presumed  to  know  those  facts  which  are  appar- 
ent upon  the  land  records  concerning  the. chain  of  title  of  the  prop- 
erty described  in  the  conveyance,  and  *  *  *  that  this  presump- 
tion of  knowledge  is  for  all  legal  purposes  the  same  in  effect  as  actual 
knowledge;"  that  "this  presumed  knowledge  is  present  at  every  step 
he  takes,  at  every  act  he  does,"  and  that  his  good  faith  and  belief 
must  be,  "consistent  with  actual  knowledge  of  the  facts  affecting  his 
title  which  are  apparent  upon  the  land  records ;"  that  "one  who  fails 
to  examine  to  see  what  the  records  disclose  concerning  the  title  to  the 
land  he  proposes  to  take,  is,  in  the  eye  of  the  law,  negligent;  and 
equity  does  not  as  a  general  rule  relieve  from  the  consequences  of  one's 
own  negligence." 

Applying  these  principles  to  this  case,  we  find  that  Alfred  Young, 
m  the  eye  of  the  law  knew,  when  he  purchased  from  Marsh  Brothers, 


Ch.  8)  PRIORITIES  867 

that  they  had  no  title,  but  that  Marsh  Brothers  on  the  8th  of  Septem- 
ber, 1899,  had  conveyed  to  Merwin,  and  that  the  title  was  still  in  Mer- 
win,  and  that  it  so  appeared  upon  the  public  records.  In  contempla- 
tion of  law,  therefore,  he  did  'not  act  in  good  faith,  but  was  negligent 
in  making  such  purchase  without  having  first  examined  to  see  what  the 
records  disclosed  concerning  the  title  to  the  land  he  proposed  to  pur- 
chase. When  Burr  &  Knapp  took  their  mortgage  from  Marsh  Broth- 
ers on  the  26th  of  October,  they  knew  that  the  title  to  the  mortgaged 
property  had  been  in  Merwin  from  September  8th,  1899,  until  Octo- 
ber 26th,  1900.  Since  they  had  no  reason  to  suppose  that  one  having 
no  title  to  the  property  would  convey  it  during  that  period,  they  had 
no  occasion  to  search  the  records  to  ascertain  whether  Marsh  Brothers 
had  made  any  conveyance  during  that  period.  They  were  only  re- 
quired to  search  against  each  owner  during  the  time  he  held  the  rec- 
ord title.  The  deed  of  Marsh  Brothers  to  Young  was  not  in  the  line 
of  record  title,  and  Burr  &  Knapp  were  not  charged  with  knowl- 
edge of  its  existence.  See  Bingham  v.  Kirkland,  34  N.  J.  Eq.  229, 
and  the  other  cases  cited.  It  is  said,  however,  that  the  Merwin  deed 
was  not  on  record  when  Burr  &  Knapp  took  their  mortgage  on  the 
26th  of  October.  But  the  Merwin  deed  was  not  in  fact  delivered 
until  that  day,  and  Burr  &  Knapp  had  no  reason  to  think  that  a  deed 
delivered  on  that  day,  and  before  their  mortgage  was  delivered,  that 
is,  before  3  :01  P.  M.,  ought  to, be  recorded  when  their  mortgage  was 
delivered,  nor  was  there  any  reason  why  they  should  require  it  to 
be  recorded  before  accepting  the  mortgage.  The  records  showed  a 
good  title  in  Merwin  up  to  the  time  of  the  delivery  of  the  mortgage 
deed.  Burr  &  Knapp  had  only  to  satisfy  themselves  that  a  deed  had 
been  given  by  Merwin  to  Marsh  Brothers  that  day,  which  was  the 
fact,  and  that  no  conveyance  had  been  made  by  Marsh  Brothers  since 
they  received  their  deed  from  Merwin,  which  was  also  true.  As 
the  deed  of  Marsh  Brothers  to  Young  and  the  mortgage  back  by 
Young  to  Charles  B.  Marsh  were  not  incumbrances  upon  the  title  of 
record,  -the  information  given  to  Burr  &  Knapp  by  the  searcher,  that 
"the  premises  were  free  and  clear  of  all  incumbrance  and  the  legal 
title  in  Marsh  Brothers,"  was  entirely  consistent  with  the  facts  as  they 
appeared  by  the  records  concerning  the  chain  of  title,  and  the  fact  that 
Marsh  Brothers  had  that  day  acquired  title  from  Merwin.  The  facts 
before  us  show  that  Burr  &  Knapp  acted  in  good  faith,  and  without 
negligence,  and  without  knowledge  of  the  Young  deed,  and  that  having 
on  the  26th  of  October  taken  a  mortgage  from  those,  who  on  that 
day  had  received  a  deed  from  the  legal  owners,  and  the  owners  of 
record,  their  mortgage  is  valid.  As  Alfred  Young  had  no  title  su- 
perior to  the  Burr  &  Knapp  mortgage  when  he  conveyed  to  the  defend- 
ant Young  on  January  2d,  1901,  the  defendant  Young  by  his  deed  of 
that  date  took  no  title  superior  to  the  mortgage.  The  plaintiff  is  entitled 
to  a  judgment  of   foreclosure. 


868  DERIVATIVE  TITLES  (Part  2 

There  is  error  in  the  judgment  of  the  trial  court  and  it  is  reversed, 
and  the  case  remanded  for  the  entry  of  a  judgment  of  foreclosure  in 
favor  of  the  plaintiff.  (c 

In  this  opinion  the  other  judges  concurred/' 


HOLDEN  V.  GARRETT. 

(Supreme  Court  of  Kansas,  1S79.     23  Kan.  98.) 

Action  brought  by  Nina  Garrett  against  Uriah  Stephens  and  Mar- 
tha J.  Stephens,  his  wife,  John  Dial,  John  M.  Wheeler,  W.  H.  Ryus, 
and  Howard  M.  Holden,  upon  a  note,  executed  by  the  said  Uriah 
Stephens,  November  25,  1869,  payable  in  seven  years  and  nine  months 
after  date,  witli  interest  at  ten  per  cent,  per  annum,  and  to  foreclose 
a  mortgage  given  at  the  same  time  to  secure  the  payment  of  said  note, 
by  the  said  Uriah  Stephens  and  wife,  upon  certain  real  estate  situated 
in  the  county  of  Pottawatomie.  The  other  defendants  were  made 
parties  for  tlie  purpose  of  determining  any  interest  they  might  have  in 
and  to  said  real  estate,  and  the  priority  of  all  claims  or  liens  thereon. 
Service  of  summons  was  duly  made  upon  all  of  the  defendants.  Uriah 
Stephens,  Martha  J.  Stephens  and  W.  H.  Ryus  filed  no  answers,  but 
made  default  in  said  action.  John  Dial,  John  M.  Wheeler  and  Howard 
M.  Holden,  each  filed  separate  answers  in  the  action,  setting  up  his 
claim  or  interest  in  said  real  estate.  Trial  at  the  August  Term,  1878, 
of  the  district  court,  by  the  court,  (a  jury  being  waived,)  when  the 
court  found  for  the  plaintiff,  and  against  all  of  the  defendants  except 
Dial,  whose  claim  to  the  land  described  in  his  answer  tlierein  w^as  con- 
ceded by  the  plaintiff,  and  judgment  was  accordingly  rendered  in  favor 
of  tlie  plaintiff',  Nina  Garrett,  for  the  amount  due  on  said  note,  and 
declaring  said  mortgage  to  be  a  prior  and  first  lien  upon  the  lands 
therein  described  as  against  the  clairn  or  interest  of  any  and  all  of  the 
other  defendants.    Holden  brings  the  case  to  this  court  for  review. 

The  facts,  as  they  appear  in  the  plaintiff's  petition,  the  answer  of 
the  defendant  Holden,  and  the  testimony  on  their  part,  are  in  sub- 
stance as  follows :  Prior  to  the  25th  day  of  November,  1869,  the  said 
Nina  Garrett  was  tlie  owner  in  fee,  in  her  own  right,  of  the  real  estate 
described  in  her  said  petition,  situated  in  the  county  of  Pottawatomie. 
On  said  25th  day  of  November,  1869,  the  plaintiff  being  a  minor,  said 
real  estate  was  sold  under  the  direction  of  the  probate  court  of  Wyan- 
dotte county,  by  virtue  of  an  order  of  said  court,  by  Eliza  J.  Stone,  the 
legally-constituted  guardian  of  the  plaintiff",  and  by  her  conveyed  to 
Uriah  Stephens.  The  note  and  mortgage  sued  on  in  said  action  were 
given  for  a  portion  of  the  purchase  money  therefor.  This  mortgage 
was  not  recorded  until  March  5th,  1875,  at  which  time  it  was  duly 

17  Iiichardson  v.  Atlantic  Coast  Lumber  Corporation,  93  S.  C.  254,  75  S.  E, 
371  (I'Jil'l,  ace. 


Ch.  8)  PRIORITIES  869 

recorded  in  the  office  of  the  register  of  deeds  for  the  county  of  Pot- 
tawatomie. On  the  4th  and  12th  days  of  March,  1874,  respectively, 
two  certain  personal  judgments  were  rendered  by  the  consideration 
of  the  district  court  of  Wyandotte  county  against  the  said  Uriah 
Stephens,  and  in  favor  of  Jacob  Luke  and  John  Olson  and  Nels  Olson, 
respectively.  Afterward,  executions  were  issued  by  the  clerk  of  said 
district  court  of  Wyandotte  county  on  said  judgments,  directed  to  the 
sheriff  of  the  county  of  Pottawatomie;  and  on  the  20th  day  of  July, 
1874,  these  executions  were,  by  the  sheriff  of  said  county  of  Pottawa- 
tomie, levied  upon  a  portion  of  the  lands  described  in  the  mortgage  of 
said  plaintiff.  No  sale  was  made  or  attempted  under  and  by  virtue  of 
said  executions,  but  the  same  were  returned  to  the  court  from  which 
they  were  issued,  and  ahas  and  pluries  executions  issued,  which  were  in 
turn  levied  upon  said  lands  until  the  25th  day  of  November,  1876, 
when  a  sale  tliereunder  was  made  by  the  sheriff  of  the  county  of  Pot- 
tawatomie, to  one  W.  PI.  Ryus.  On  the  30th  of  March,  1876,  the  two 
above-named  judgments  were  assigned  to  Holden,  and  the  assignments 
thereof  were  duly  filed  in  the  office  of  the  clerk  of  the  district  court 
of  Wyandotte  county.  Whatever  interest  Holden  had  in  said  real  es- 
tate was  derived  from  the  said  sherift''s  sale  to  W.  H.  Ryus. 

Brewer,  J.  The  contest  in  this  case  is  between  one  who  claims  un- 
der the  lien  of  an  execution  levy,  and  the  holder  of  a  prior  but  un- 
recorded mortgage.  The  judgment  was  in  a  county  other  tlian  that 
in  which  the  land  was  situate,  and  was  rendered  long  after  the  ex- 
ecution of  the  mortgage.  The  lev^  was  made  before,  but  the  sale 
not  till  after,  the  record  of  the  mortgage.  There  was  no  actual  notice 
of  the  existence  of  this  mortgage.  On  the  one  side  it  is  claimed  that 
by  virtue  of  section  21,  ch.  22,'Gen.  St.  p.  187,  which  reads  as  fol- 
lows :  "No  such  instrument  in  writing  shall  be  valid  except  between 
the  parties  thereto,  and  such  as  have  actual  notice  thereof,  until  the 
same  shall  be  deposited  with  the  register  of  deeds  for  record,"  the 
mortgage  is  to  be  considered  as  though  it  had  no  existence,  and  the 
land  as  free  from  any  incumbrance  at  the  date  of  the  levy,  and  that 
the  lien  then  secured  by  the  levy  ripened  into  a  title  by  the  sale,  and 
was  paramount  to  the  lien  created  by  the  subsequent  record  of  the 
mortgage;  and  on  the  other  hand  it  is  claimed  that  the  lien  of  the 
levy  was  only  upon  the  actual  interest  of  the  judgment  debtor  in  the 
real  estate,  and  that  as  such  interest  was  in  fact  limited  by  the  mort- 
gage, only  such  limited  interest  was  seized  and  bound  by  the  levy. 

Of  course,  this  is  but  part  and  parcel  of  a  still  broader  question, 
and  that  is,  does  the  lien  of  an  execution  levy  extend  to  only  the  ac- 
tual, or  does  it  also  reach  the  apparent,  title  of  the  judgment  debtor? 
Is  the  inquiry  restricted  to  the  face  of  the  record,  or  may  it  pass  to 
the  actual  facts  ?  Authorities  are  not  wanting  to  support  either  view, 
and  cogent  reasons  may  be  adduced  in  favor  of  each.  On  the  one 
hand  it  may  be  said  with  force  that  if  the  mortgage  lien  is  adjudged 
paramount,  then  the  section  quoted  is  practically  nullified,  and  an  in- 


870  DERIVATIVE  TITLES  (Part  2 

strument  which  the  statute  declares*  invalid  is  pronounced  valid ;  and 
on  the  other,  that  if  the  levy  is  adjudged  paramount,  tlien  the  statute 
which  authorizes  a  levy  upon  the  lands,  tenements  and  hereditaments 
of  the  debtor  is  extended  so  as  to  sustain  a  levy  upon  lands  which  are 
not  in  fact  wholly  his. 

With  much  hesitation,  and  after  a  long  and  careful  examination  of 
the  question  in  its  various  relations,  we  have  reached  the  conclusion 
that  the  lien  of  the  m.ortgage  must  be  adjudged  prior  and  paramount. 
These  are  the  reasons  which  have  controlled  us :  It  gives  exact  force 
to  the  statute  declaring  to  what  a  judgment  lien  and  an  execution  levy 
extend.  Judgments  "shall  be  liens  on  the  real  estate  of  the  debtor, 
within  the  county."  Dassler's  Comp.  Laws  1879,  p.  656,  §  419.  This 
evidently  contemplates  actual  and  not  apparent  ownership.  The  judg- 
ment is  a  lien  upon  that  which  is  his,  and  not  that  which  simply  ap- 
pears to  be  his.  How  often  the  legal  title  is  placed  in  one  party  when 
the  equitable  title,  the  real  ownership,  is  in  others.  Many  reasons 
induce  this — convenience  in  managing,  facility  in  passing  title,  number 
of  parties  interested,  and  others  needless  to  mention.  And  yet  the 
record  discloses  only  the  naked  legal  title.  Now  if  the  judgment  is  a 
lien  upon  all  that  appears,  it  will  cut  off  all  the  undisclosed  equitable 
rights  and  interests.  To  extend  the  lien  to  that  which  is  not,  but  which 
appears  of  record  to  be  the  defendant's,  is  to  do  violence  to  the  lan- 
guage. "Real  estate  of  the  debtor"  plainly  means  that  which  is  in  fact 
of  or  belonging  to  the  debtor.  And  he  who  claims  under  a  judgment 
lien  can  take  no  more  than  the  statute  gives.  The  question  is  not  what 
rights  some  one  else  may  have,  but  what  rights  does  he  acquire?  The 
answer  to  this  question  must  first  and  chiefly  be  sought  in  the  statute 
which  gives  and  defines  the  extent  of  that  lien.  The  section  defining 
the  extent  of  the  execution  levy  may  not  be  quite  so  clear  in  its  indica- 
tions, and  yet,  taken  in  connection  with  that  cited  concerning  the  judg- 
ment lien,  it  is  perfectly  plain.  "All  real  estate,  not  bound  by  the  lien 
of  the  judgment,  as  well  as  goods  and  chattels  of  the  debtor,  shall  be 
bound  from  the  time  they  shall  be  seized  in  execution."  Dassler's 
Comp.  Laws  1879,  p.  660,  §  444.  It  might  be  argued  that  the  words 
"of  the  debtor"  only  qualify  the  immediately  preceding  words,  "goods 
and  chattels,"  and  not  the  prior  clause,  "all  real  estate,"  etc. ;  but,  com- 
paring the  two  sections  together,  it  is  plain  that  no  larger  or  other 
interest  is  taken  by  the  levy  of  an  execution  upon  real  estate  outside 
the  county,  than  is  covered  by  the  lien  of  the  judgment  upon  real 
estate  within  the  county.  Again,  this  construction  of  the  extent  to 
which  the  lien  goes  was  settled  early  in  the  history  of  this  court,  and 
has  never  been  departed  from.  In  Swarts  v.  Stees,  2  Kan.  241,  85 
Am.  Dec.  588,  Crozier,  C.  J.,  speaking  for  tlie  court,  says :  "Their  lien," 
(i.  e.,  the  hen  of  judgment  creditors,)  "is  upon  the  lands  and  tenements 
of  the  debtor,  and  not  upon  lands  and  tenements  not  in  fact  belonging 
to  him."  True,  the  decision  in  that  case  was  under  a  different  record- 
ing act,  and  much  of  the  argument  in  the  opinion  is  entirely  inapplica- 


Ch.  8)  PRIORITIES  871 

ble  to  the  present  question;  but  still,  the  extent  of  a  judgment  lien 
is  plainly  recognized  and  stated.  See  also  Harrison  v.  Andrews,  18 
Kan.  542.  It  may  also  here  be  remarked,  tliat  we  have  had  occasion 
to  notice  the  fact  that  priority  of  lien  or  title,  even  in  the  absence  of 
actual  notice,  does  not  always  hinge  upon,  the  mere  priority  of  record. 
Other  matters  may  enter  into  and  affect  the  question,  and  equities  not 
shown  of  record  may  control.  School  District  v.  Taylor,  19  Kan. 
287;  Tucker  v.  Vandermark,  21  Kan.  263.  Again,  it  may  be  laid 
down  as  familiar  law,  that  a  judgment  creditor  is  not  a  bona  fide  pur- 
chaser. He  parts  with  nothing  to  acquire  his  Hen.  He  is  in  a  very 
different  position  from  one  who  has  bought  and  paid,  or  has  loaned  on 
the  face  of  a  recorded  title.  The  equities  are  entirely  unlike.  One 
has,  and  the  other  has  not,  parted  with  value  upon  the  face  of  the 
record.  If  the  real  prevails  over  the  apparent  title,  the  one  is  no  worse 
off  tlian  before  he  acquired  his  lien — has  lost  nothing;  while  the  other 
loses  the  value  paid  or  loaned.  Hence  equity  will  help  tlie  latter, 
while  it  ciares  nothing  about  the  former.  Further,  in  nearly  every 
state  in  which  an  unrecorded  mortgage  has  been  postponed  to  a  judg- 
ment lien,  the  statute  has  expressly  declared  that  such  a  mortgage  shall 
be  void  as  against  creditors ;  and  tlie  courts  have  laid  stress  upon  this 
fact  in  their  opinions.  Thus,  the  statute  of  Illinois,  1845,  p.  108,  §  23, 
provides :  "All  deeds,  mortgages  or  other  instruments  of  writing  which 
are  required  to  be  recorded,  shall  take  effect,  and  be  in  force  after 
the  time  of  filing  the  same  for  record,  and  not  before,  as  to  all  cred- 
itors and  subsequent  purchasers,  without  notice ;  and  all  such  deeds 
and  title  papers  shall  be  adjudged  void  as  to  all  such  creditors  and 
subsequent  purchasers,  without  notice,  until  the  same  shall  be  filed  for 
record."  It  has  been  decided  under  this  statute  that  a  deed  not  filed 
for  record  is,  as  to  creditors  and  subsequent  purchasers,  wholly  with- 
out effect.  Martin  v.  Dryden,  1  Oilman  (111.)  187;  Cook  v.  Hall,  1 
Oilman  (111.)  575;  Choteau  v.  Jones,  11  111.  300,  50  Am.  Dec.  460; 
Kennedy  v.  Northup,  15  111.  148;  Curtis  v.  Root,  28  111.  367;  Brook- 
field  v.  Goodrich,  32  111.  363.^«  See  also  McNitt  v.  Turner,  16  Wall. 
352,  21  L.  Ed.  341. ^«     *     *     * 

The  only  other  state  ^°  in  which  we  have  found  or  been  referred  to 
a  statute  exactly  like  ours  is  Iowa,  in  which  at  one  time  was  in  force  a 
section  like  the  one  first  quoted  in  this  opinion.  Under  that  in  Brown 
V.  Tuthill,  1  G.  Greene  (Iowa)  189,  it  was  held  that  a  "lien  by  attach- 
ment will  hold  against  a  prior  unrecorded  deed."  The  section  of 
the  statute  w^as  soon  after  modified,  and  in  a  case  arising  under  tlie 

18  Not  uncommonly  the  statutes  extend  the  protection  to  creditors.  By  con- 
struction, however,  the  benefit  of  such  sttitutes  generally  has  been  limited  to 
lien  creditors.  See  the  cases  referred  to  in  24  Am.  &  Eng.  Encyc.  of  Law,  126 
et  seq. 

19  A  portion  of  the  opinion,  in  which  tlie  court  reviews  the  statutes  of  a 
number  of  states  and  the  decisions  thereunder,  is  omitted. 

20  That  is,  besides  Missouri.  See  Davis  v.  Owenby,  14  Mo.  170,  55  Am.  Dec.  105 
(1851),  quoted  from  and  relied  upon  in  the  portion  of  the  opinion  omitted. 


872  DERIVATIVE  TITLES  (Part  2 

new  law,  (Norton  v.  Williams,  9  Iowa,  528),  the  court  says:  "We 
incline  to  .the  opinion  that,  under  the  statute  of  1843,  the  case  of  Brown 
V.  Tutliill  is  against  the  current  of  the  decisions." 

The  weight  of  authority,  therefore,  upon  the  exact  statute  before 
us,  is  decidedly  with  the  conclusion  we  have  reached.  Without  ex- 
tending this  opinon,  we  close  by  saying  that  our  conclusion  gives  full 
and  exact  force  to  the  statute  which  creates  and  defines  a  judgment 
lien;  that  it  is  in  accord  with  the  prior  adjudications  of  this  court; 
that  it  sustains  and  enforces  the  real  equities  of  all  parties;  and  that 
it  is  upheld  by  the  decided  weight  of  authority  elsewhere  upon  the 
exact  question. 

The  judgment  will  be  affirmed.    All  the  Justices  concurring.^* 


STERNBERGER  &  WILLARD  v.  RAGLAND. 
(Supreme  Court  of  Ohio,  1S97.    57  Ohio  St.  14S,  48  N.  E.  Sll.) 

Error  to  the  Circuit  Court  of  Jackson  county. 

On  the  22d  day  of  January,  1889,  the  defendant  in  error,  William 
Ragland,  purchased  a  town  lot  in  Jackson,  from  the  Wood-Co£fman 
Manufacturing  Company,  then  the  owner  thereof,  and  obtained  a  deed 
for  the  same  in  fee  simple.  He  paid  a  part  of  the  purchase  price,  at 
the  time  of  the  conveyance  to  him,  and  gave  a  mortgage  on  the  lot  to 
secure  the  payment  of  the  balance.  This  mortgage,  which  contains  a 
recital  that  it  was  given  to  secure  tlie  unpaid  purchase  money,  was  re- 
corded in  April,  1889.  The  deed  was  never  filed  for  record.  After 
the  conveyance  was  made  and  the  mortgage  recorded,  judgments  were 
recovered  in  the  court  of  common  pleas  of  Jackson  county,  against 
Ragland's  grantor,  which  were  purchased  in  good  faith  by  the  de- 
fendant in  error,  Morris  L.  Sternberger,  who  paid  full  value  therefor ; 
and  executions  issued  thereon  were  levied  on  tlie  lot  in  question,  which 
then  appeared  of  record  to  belong  to  the  judgment  debtor,  and  it  was 
thereafter  sold  under  the  writs  to  satisfy  the  judgments.  Sternberger 
became  the  purchaser  at  the  sale,  which  was  confirmed  by  the  court, 
and  tlie  sheriff  in  pursuance  of  the  order  of  the  court  executed  a  deed 
to  Sternberger  for  the  lot,  in  due  form  of  law,  which  he  caused  to  be 
placed  upon  record.  The  proceeds  of  the  sale,  after  payment  of  the 
costs  and  taxes,  were  applied  under  the  order  of  the  court  toward  the 
satisfaction  of  the  judgments.  Sternberger  then  sold,  and  conveyed 
by  quitclaim  deed,  the  undivided  one-half  of  the  lot  to  his  co-plaintiff 
in  error,  Henry  S.  Willard,  who  paid  full  value  therefor,  and  promptly 
placed  his  deed  on  record. 

21  Under  the  Ohio  mort,gage  registry  statute  a  judgment  lien  takes  precedence 
over  a  mortgage  executed  before  the  lien  attached,  but  recorded  after.  Jack- 
son V.  Luce,  14  Ohio,  514  (1846).  But  it  seems  that  in  Ohio  recording  of  mort- 
gages is  really  a  part  of  their  execution. 


Ch.  8)  PRIORITIES  873 

Thereafter,  Ragland  brought  suit  to  quiet  his  title  to  the  lot  against 
Sternberger  and  Willard,  who  set  up  their  respective  claims  to  its  own- 
ership. The  case  went  on  appeal  to  the  circuit  court  where  a  finding 
was  made  of  the  facts,  which,  in  addition  to  those  already  stated,  are 
as  follows:  "The  lot  described  in  the  petition  was  not  improved,  or 
fenced,  and  not  occupied  except  occasionally  for  the  storage  of  small 
quantities  of  lumber  by  the  plaintiff,  and  some  fence  posts  have  re- 
mained and  still  remain  on  said  lot;  otherwise,  said  lot  was  vacant, 
and,  at  the  time  of  the  purchase  by  said  Sternberger,  at  sheriff's  sale, 
the  character  and  nature  of  the  plaintift''s  possession  was  not  of  such 
nature  as  to  place  said  Sternberger  upon  inquiry  or  notice,  nor  was  it 
of  such  a  character  as  to  place  said  Willard  upon  inquiry  nor  notice 
when  he  purchased.  The  Wood-Coffman  Manufacturing  Company 
was,  upon  the  deed  records  of  said  county,  the  apparent  owner  when 
the  sheriff's  sale  was  made.  The  defendant,  Morris  L.  Sternberger, 
when  he  purchased  said  lot  at  sheriff's  sale,  paid  value  therefor  in  the 
purchase  of  said  judgments,  and  he  had  no  notice,  actual  or  construt- 
tive,  of  plaintiff's  claim  thereto,  unless  the  mortgage  of  plaintiff  to  said 
company  was  constructive  notice,  which  we  hold  not  to  be  constructive 
notice  to  him;  and  the  defendant,  Willard,  when  he  purchased  from 
said  Sternberger,  paid  value  therefor,  and  he  had  no  notice,  actual  or 
constructive,  of  plaintiff's  claim,  unless  such  mortgage  was  construc- 
tive notice,  which  we  hold  was  not  constructive  notice  to  him ;  and 
neither  of  the  defendants  had  notice  of  plaintiff's  deed  to  said  lot  or 
claim,  thereto." 

Upon  tliis  state  of  facts  the  court  held,  as  its  conclusions  of  law, 
as  appears  from  the  record  that :  "The  Wood-Coffman  Manufacturing 
Company  having  conveyed  said  lot  by  deed  to  plaintiff,  although  said 
plaintiff  never  had  said  deed  recorded,  had  no  further  interest  in  said 
lot  which  could  be  sold  at  judicial  sale,  although  it  was  the  apparent 
owner  of  said  lot  upon  the  records,  and  the  defendant,  Sternberger, 
though  purchasing  said  lot  for  value  and  without  notice,  could  not  ob- 
tain title  thereto  by  purchasing  at  said  judicial  sale." 

Thereupon  judgment  was  rendered  against  Sternberger  and  Willard, 
which  they  seek  to  have  reversed  here. 

Williams,  J.  The  question  in  the  case  is  whether  Sternberger,  un- 
der the  judicial  sale,  became  a  bona  fide  purchaser  within  the  rule 
which  protects  such  purchasers  against  unrecorded  conveyances.  It 
must  be  regarded  as  established  by  the  facts  found  in  the  court  below, 
that  there  was  not-  such  possession  of  the  lot  by  Ragland  as  put  Stern- 
berger upon  inquiry,  or  charged  him  with  notice  of  any  claim  or  equity 
of  the  former,  either,  when  the  judgments  were  recovered,  or  the  ex- 
ecutions levied,  or  when  the  sale  was  made  and  confirmed,  or  the  deed 
from  the  sheriff  was  received  by  Sternberger;  and  also,  tliat  Stern- 
berger was  without  any  actual  knowledge  of  Ragland's  unrecorded 
deed,  or  of  any  claim  by  him  to  any  interest  in  the  lot. 

The  record  of  the  mortgage  executed  by  Ragland  for  the  unpaid  pur- 


874  DERIVATIVE  TITLES  (Part  2 

chase  money  for  the  lot,  was  not  constructive  notice  of  his  unregistered 
deed,  to  a  subsequent  purchaser  from  his  grantor. 

When  a  prospective  purchaser  finds  a  complete  record  title  in  the 
proposed  seller,  he  is  not  bound  to  examine  for  mortgages  made  to 
the  latter  after  he  became  the  owner;  such  a  mortgage  is  not  in  the 
chain  of  his  title,  and  is  not,  therefore,  constructive  notice  to  a  sub- 
sequent purchaser,  of  a  prior  unrecorded  deed  made  by  him  to  the 
mortgagor.  The  circuit  court  so  held.  But,  notwithstanding  its  find- 
ing that  Sternberger  was  a  purchaser  at  the  judicial  sale  for  value  and 
without  notice,  actual  or  constructive,  of  any  adverse  claim  of  Ragland 
to  the  premises  he  so  bought,  the  judgment  of  the  court  was  adverse 
to  him.  The  judgment  appears  to  rest  upon  the  ground  that  tlie  deed 
to  Ragland,  though  unrecorded,  divested  his  grantor  of  all  interest  in 
the  lot,  and  thereafter  nothing  remained  in  tlie  judgment  debtor,  al- 
though appearing  of  record  to  be  the  owner  of  the  lot,  upon  which 
the  judgments  became  liens,  or  that  could  be  sold  at  judicial  sale  there- 
under. 

It  is  undoubtedly  the  general  rule,  except  in  so  far  as  it  is  modified 
and  controlled  by  statute,  that  a  judgment  creditor  obtains  a  lien  only 
on  such  interest  in  lands  as  his  debtor  had  when  the  judgment  was 
rendered,  and,  it  is  subject  to  such  equities  as  could  then  be  success- 
fully asserted  against  the  debtor.  But  our  statute  (section  4134,  Re- 
vised Statutes  1890),  requires  that  all  deeds  and  instruments  for  the 
conveyance  of  lands,  or  interests  therein,  "shall  be  recorded  in  the  of- 
fice of  the  recorder  of  the  county  in  which  the  premises  are  situated," 
and  provides  that,  "until  so  recorded  or  filed  for  record,  the  same  shall 
be  deemed  fraudulent,  so  far  as  relates  to  a  subsequent  bona  fide  pur- 
chaser, having,  at  the  time  of  purchase,  nO'  knowledge  of  the  existence 
of  such  former  deed  or  instrument."  This  statute  renders  any  prior 
unrecorded  deed  wholly  ineffectual  to  convey  the  title  out  of  the  gran- 
tor, as  against  a  subsequent  bona  fide  purchaser  from  him,  and  leaves 
him  with  as  full  and  ample  power  to  convey  a  good  title  to  such  sub- 
sequent purchaser  as  if  the  prior  conveyance  had  not  been  made.  And, 
it  is  settled  by  the  adjudications  of  this  court,  that  purchasers  at  ju- 
dicial sales,  without  notice  of  a  prior  unrecorded  deed  from  the  judg- 
ment debtor,  are  within  the  protection  of  the  statute  equally  with  pur- 
chasers at  private  sale.  Scribner's  Lessee  v.  Lockwood,  9  Ohio,  184; 
Morris  v.  Daniels,  35  Ohio  St.  406. 

The  title  acquired  by  Sternberger  at  the  judicial  sale  was,  therefore, 
superior  to  that  of  Ragland,  unless  the  former  is  to  be  denied  the 
position  of  a  bona  fide  purchaser  because  he  was  the  owner  of  the 
judgments  under  which  the  sale  was  made. 

It  is  claimed  that  as  he  was  the  owner  of  the  judgments  at  the  time 
of  his  purchase,  and  their  satisfaction  pro  tanto  was  the  only  consid- 
eration he  paid,  he  does  not  come  within  the  rule  in  favor  of  bona  fide 
purchasers.  This  position  is  sought  to  be  sustained  by  Lewis  v.  Ander* 
son,  20  Ohio  St.  281.    But  that  case  simply  holds,  that;   "Where  there 


Ch.  8)  PRIORITIES  •  875 

is  no  consideration  for  a  mortgage  of  real  estate  other  than  a  pre-exist- 
ing debt  of  the  mortgagor,  and  the  mortgagee  is  not  induced  thereby 
to  change  his  condition  in  any  manner,  he  cannot  be  regarded  as  a 
bona  fide  purchaser  for  value." 

That  decision  is  placed  upon  the  ground,  as  stated  in  the  opinion, 
that,  "the  rule  which  favors  a  bona  fide  purchaser  of  land,  and  that 
which  protects  the  holder  of  negotiable  paper  for  value  before  due 
from  infirmities  affecting  the  instrument  before  it  was  transferred,  are 
based  substantially  on  the  same  equitable  grounds,  and  upon  tlie  policy 
of  the  law  which  favors  trade  and  the  security  of  titles,  as  conducive 
to  the  public  good."  And  in  that  case,  Roxborough  v.  Messick,  6 
Ohio  St.  448,  67  Am.  Dec.  346,  is  cited,  where  the  rules  applicable  in 
determining  what  considerations  are  sufficient  to  protect  the  holders 
of  commercial  paper  are  fully  considered,  which,  as  there  laid  down, 
have  since  been  regarded  as  the  settled  law  on  that  subject.  It  is  there 
held,  that  while  a  voluntary  transfer  of  a  negotiable  instrument  to  se- 
cure a  pre-existing  debt,  where  the  parties  are  left  in  respect  to  such 
debt  in  statu  quo,  tliere  being  no  new  consideration,  stipulation  for 
delay,  or  credit  given,  or  right  parted  with,  is  not  sufficierit  to  protect 
the  holder  against  equities  existing  between  the  prior  parties  at  the 
time  of  the  transfer,  yet,  when  the  note  is  transferred  in  payment  of 
the  precedent  debt,  the  consideration  is  sufficient  to  entitle  the  holder 
to  such  protection.  "The  weight  of  authority,"  says  Swan,  J.,  in  that 
case,  "seems  to  settle  the  principle,  that  where  a  negotiable  instrument 
of  a  third  person  is  transferred  before  due,  in  payment  of  a  pre-exist- 
ing debt,  and  is  bona  fide  received  by  the  creditor,  without  notice,  tlie 
defenses  existing  as  between  the  prior  parties  cannot  be  set  up  against 
such  holder."  And  that  learned  judge  further  says,  in  that  case,  tliat 
there  is  "no  substantial  difference  between  the  consideration  for  the 
transfer  of  negotiable  paper  in  payment  of  a  precedent  debt,  or  in 
payment  of  goods  sold  at  the  time  of  such  transfer."  Applying  these 
principles  to  a  purchaser  of  real  property,  it  was  held  in  Clements  v. 
Doerner,  40  Ohio  St.  632,  that  a  purchaser  who  takes  a  conveyance  of 
real  estate  in  payment  of  a  pre-existing  debt  is  a  bona  fide  purchaser 
for  value,  and  entitled  to  be  protected  as  against  a  prior  defective  mort- 
gage made  by  his  grantor.  When  the  conveyance  is  received  in  pay- 
ment of  the  debt,  there  is  a  change  in  the  situation  of  the  parties ;  the 
debt  is  for  tlie  time  being,  at  least,  discharged ;  and,  though  the  cred- 
itor may  be  restored,  upon  failure  of  his  title  to  the  property,  to  his 
right  to  enforce  the  collection  of  the  debt,  so  recovery  may  be  had 
for  any  other  consideration  parted  with  for  the  property,  where  the 
title  for  any  cause  fails. 

If  it  be  said  Sternberger  could  have  the  satisfaction  of  his  judgments 
vacated  and  new  process  issued  for  the  collection  of  the  judgments 
out  of  any  property  of  the  judgment  debtor,  so,  any  stranger,  who 
might  have  become  the  purchaser  at  the  sale,  would  be  entitled  to  the 
same  remedy.     Revised  Statutes  1890,  §§  5410,  5412.     The  necessity 


876  DERIVATIVE  TITLES  (Part  2 

of  resorting  to  such  a  remedy  is  sufficient,  of  itself,  to  show  that  a  sub- 
stantial change  occurred  in  tlie  situation  of  the  parties  by  the  satisfac- 
tion of  the  judgments  on  the  confirmation  of  tlie  sale;  and  the  neglect 
of  Ragland  to  have  his  deed  placed  on  record,  does  not  entitle  him  to 
drive  the  purchaser,  in  either  case,  to  that  remedy.  Had  Sternberger 
made  his  purchase  at  private  sale,-  instead  of  at  a  judicial  sale,  there 
could  be  no  doubt,  we  think,  of  the  superiority  of  his  right  to  the  prop- 
erty over  that  of  Ragland;  and  his  right  in  that  respect  is  none  tlie 
less,  because  the  conveyance  was  made  through  the  instrumentality  of 
the  sheriff  and  the  forms  of  judicial  proceedings,  instead  of  immedi- 
ately from  the  judgment  debtor.  The  deed  of  the  sheriff  conveyed  a 
title  as  good  and  complete  as  the  judgment  debtor  could  have  con- 
veyed. 

In  the  note  to  Basset  v.  Nosworthy,  2  Leading  Cases  in  Equity,  110, 
111,  the  conclusion  reached  after  a  full  discussion  of  the  subject,  and 
review  of  the  cases,  is  that  the  weight  of  authority  in  tliis  country  is 
"in  favor  of  the  proposition  that  a  purchaser  at  a  judicial  sale,  stands 
on  the  same  footing  with  a  purchaser  directly  from  the  debtor;  and, 
that  a  purchaser  at  such  sale  will  take  the  land  discharged  of  any 
claim  or  title,  whether  arising  under  an  unregistered  deed,  or  a  mere 
equity,  of  which  he  had  no  notice  at  tlie  time  of  the  purchase,  and 
which  would  be  invalid  as  against  an  ordinary  purchaser;"  and  fur- 
thermore, that  the  rule  is  the  same  "when  the  judgment  creditor  be- 
comes the  purchaser,  because  the  money  which  he  pays  goes  in  sat- 
isfaction of  the  debt;  and  every  additional  bid  is  necessarily  an  ad- 
vantage to  the  defendant  in  the  judgment."  The  following,  among  oth- 
ers, may  be  added  to  the  cases  there  cited  in  support  of  the  rule  as 
stated:  Foorman  v.  Wallace,  75  Cal.  552,  17  Pac.  680;  Evans  v.  Mc- 
Glasson,  18  Iowa,  150;  Butterfield  v.  Walsh,  21  Iowa,  97,  89  Am. 
Dec.  557;   Rorer  on  Judicial  Sales,  sec.  866. 

Judgment  reversed  and  judgment  for  the  plaintiffs  in  error. ^^ 

22  Minshall  and  Spear,  JJ.,  dissented  in  part  and  from  the  judgment  of  re- 
versal. 

See  Shirk  v.  Thomas,  121  Ind.  147,  22  N.  E.  976,  16  Am.  St  Rep.  381  (1SS9), 
senible  contra. 

Compare  Gary  v.  WMte,  52  N.  Y.  138  (1873),  where  a  mortgage  given  as  se- 
curity for  a  pre-existing  debt,  there  being  no  surrender  of  securities  nor  ex- 
tension of  time  by  the  mortgagee,  was  held  to  be  inferior  to  an  eai-lier  imre- 
corded  deed  of  the  mortgagor.  See,  too,  Western  Grocer  Co.  v.  Alleman,  81 
Kan.  543,  106  Pac.  460,  27  L.  R.  A.  (N.  S.)  620,  135  Am.  St.  Rep.  398  (1910). 

A.,  a  creditor  of  X.,  acquires  a  lien  by  judgment  upon  land  of  X.  in  a  state 
where  creditors  are  within  the  protection  of  the  recording  acts.  A.  has  no  no- 
tice of  an  earlier  unrecoi-ded  deed  by  X.  On  sale  of  the  land  under  A.'s  judg- 
ment, B.,  who  knows  all  about  the  unrecorded  deed,  purchases  same  and  re- 
ceives a  deed  therefor.  What  is  the  situation  as  between  him  and  the  grantee 
in  the  unrecorded  deed?     See  Grace  v.  Wade,  45  Tex.  522  (1876). 


Ch.  8)  PRIORITIES  877 


STRONG  V.  WHYBARK. 

(Supreme  Court  of  Missouri,  1907.     204  IMo.  341,  102  S.  W.  908,  12  L.  R.  A.  [N. 
S.]  240,  120  Aiu.  St.  Rep.  710.). 

Woodson,  J.  This  is  a  bill  in  equity,  instituted  in  the  circuit  court 
of  Butler  county,  wherein  plaintiff  seeks  to  have  her  title  quieted  to 
five  hundred  and  twenty  acres  of  land.  John  R.  Boyden  was  one  of 
the  several  defendants  named  in  the  bill.  He  filed  an  answer  claiming 
an  interest  in  and  to  one  hundred  and  sixty  acres  of  said  land,  and 
also  denied  generally  the  allegations  of  the  bill.  No  point  is  made 
against  the  pleadings,  and  he  is  the  only  defendant  whose  interest  is 
involved  in  this  appeal. 

The  facts  in  the  case  are  undisputed  and  are  as  follows : 

Seth  D.  Hayden  was  the  common  source  of  title,  and  on  March  6, 
1861,  by  his  warranty  deed,  for  a  recited  consideration  in  the  deed  of 
six  hundred  and  forty  dollars,  conveyed  said  land  to  William  A.  Moore, 
and  on  August  26,  1863,  said  Hayden,  by  his  quitclaim  deed,  for  a  re- 
cited consideration  of  "natural  love  and  affection  and  five  dollars," 
conveyed  the  same  land  to  Josephine  Hayden.  The  deed  to  Hayden 
was  recorded  April  11,  1868,  and  the  one  to  Moore  was  recorded  De- 
cember 14,  1874. 

The  plaintiff's  title  is  derived  through  mesne  conveyances  from 
Josephine  Hayden,  while  defendant's  title  is  derived  through  similar 
conveyances  from  William  A.  Moore.  It  was  admitted  that  the  land 
.was  wild  and  unoccupied.    This  was  all  the  evidence  in  the  case. 

The  court  found  for  defendant  and  rendered  judgment  for  him. 
The  plaintiff  in  due  time  filed  his  motion  for  a  new  trial,  which  was 
overruled  by  the  court,  and  to  the  action  of  the  court  in  overruling  said 
motion  the  plaintiff  duly  excepted,  and  has  appealed  the  cause  to  this 
court. 

I.  The  sole  question  involved  in  this  case  is,  did  the  subsequently 
executed  quitclaim  deed  of  Seth  D.  Hayden  to  Josephine  Hayden,  dated 
August  26,  1863,  by  virtue  of  its  prior  recordation,  have  the  force  and 
effect  of  conveying  to  her  the  title  to  the  land  in  controversy  by  force 
and  operation  of  the  registry  act,  and  thereby  render  invalid  and  inop- 
erative the  prior  warranty  deed  made  by  him  to  William  A.  Moore, 
dated  March  6,  1861,  but  not  filed  for  record  until  December  14,  1874? 

There  is  no  evidence  whatever  in  this  record  tending  to  show  that 
Josephine  Hayden  had  any  notice  or  knowledge  of  the  execution  of  the 
prior  unrecorded  warranty  deed  from  Seth  D.  Hayden  to  said  Moore, 
at  the  time  he  made  the  quitclaim  deed  to  her,  nor  is  there  any  evi- 
dence of  fraud  or  collusion  between  Seth  D.  Hayden  and  Josephine 
Hayden.  Both  William  A.  Moore  and  Josephine  Hayden  neglected  for 
years  to  file  their  deed  for  record,  as  provided  for  by  section  923, 
Revised  Statutes  1899,  yet  the  latter  filed  her  deed  about  six  years  prior 
to  the  time  when  he  filed  his. 


878  DERIVATIVE  TITLES  (Part  2 

The  statute  provides  that  "no  such  instrument  in  writing  shall  be 
valid,  except  as  between  the  parties  thereto,  and  such  as  have  actual 
notice  thereof,  until  the  same  shall  be  deposited  with  the  recorder  for 
record."    Rev.  St.  1899,  §  925. 

According  to  the  provisions  of  this  section,  the  deed  from  Hayden 
to  Moore  was  invalid  and  conveyed  no  title  to  the  land  in  controversy 
in  so  far  as  Josephine  Hayden  was  concerned,  because  she  had  no  no- 
tice of  its  execution  at  the  time  she  filed  her  deed  for  record.  If  the* 
exception  mentioned  in  the  section  just  quoted  was  the  only  exception 
or  limitation  to  that  statute,  then  there  would  be  no  question  as  to  the 
title  of  Josephine  Hayden  and  those  claiming  under  her,  but  the  courts 
upon  principles  of  equity  and  justice  have  repeatedly  held  that  if  Ijhe 
subsequent  purchaser  either  had  notice  of  the  prior  unrecorded  deed, 
or  if  he  was  a  purchaser  without  having  paid  a  good  and  valuable  con- 
sideration for  the  land,  then  he  would  take  nothing  by  his  purchase  and 
deed.  Maupin  v.  Emmons,  47  Mo.  304 ;  Aubuchon  v.  Bender,  44  Mo. 
560.  The  question  which  now  presents  itself  is,  was  Josephine  Hayden 
a  purchaser  of  the  land  in  question  for  a  good  and  valuable  considera- 
tion? The  deed  recites  that  the  conveyance  was  made  for  and  in  "con- 
sideration of  natural  love  and  affection  and  five  dollars  to  him  in  hand 
paid  by  the  party  of  the  second  part,  the  receipt  of  which  is  hereby 
acknowledged." 

A  valuable  consideration  is  defined  to  be  money  or  something  that 
is  worth  money.  2  Washburn  on  Real  Prop.  (4th  Ed.)  p.  394;  1 
Chitty  on  Contracts  (11th  Am.  Ed.)  27.  It  is  not  necessary  that  the 
consideration  should  be  adequate  in  point  of  value.  Although  small 
or  even  nominal,  in  the  absence  of  fraud,  it  is  enough  to  support  a 
contract  entered  into  upon  the  faith  of  it.  Forbs  v.  Railroad,  107 
Mo.  App.  loc.  cit.  674,  82  S.  W.  562;  Marks  v.  Bank,  8  Mo.  316; 
Ridenbaugh  v.  Young,  145  Mo.  loc.  cit.  280,  46  S.  W.  959;  Blaine 
V.  Knapp  &  Co.,  140  Mo.  loc.  cit.  251,  41  S.  W.  787;  Anderson  v. 
Gaines,  156  Mo.  664,  57  S.  W.  726;  Green  v.  Higham,  161  Mo.  333, 
61  S.  W.  798,  6  Am.  and  Eng.  Ency.  Law  (2d  Ed.)  p.  694,  par.  5.  It 
seems  to  us  that  it  would  be  a  useless  waste  of  time  and  energy  to 
cite  authorities  in  support  of  the  proposition  that  five  dollars  or  any 
other  stated  sum  of  money  in  excess  of  one  cent,  one  dime,  or  one 
dollar,  which  are  the  technical  words  used  to  express  nominal  consid- 
erations, is  a  valuable  consideration  within  the  meaning  of  the  law  of 
conveyancing.^* 

23  In  Morris  v.  Wicks,  81  Kan.  790,  106  Pac.  1048,  26  I>.  R.  A.  (N.  S.)  681,  19 
Ann.  Cas.  310  (1910),  the  consideration  paid  was  one  dollar.  Held  not  suffi- 
cient to  make  out  a  case  of  bona  fide  purchaser  for  value.  But  in  Ennis  v. 
Tucker,  78  Kan.  55,  96  Pac.  140.  130  Aw.  St.  Rep.  352  (1908),  a  consideration  of 
^iO,  though  inadequate,  was  held  sufficient  to  make  out  a  case  of  purchaser 
for  value. 

In  Ten  Eyck  v.  Witbeck,  135  N.  Y.  40,  31  N.  E.  994,  31  Am.  St.  Rep.  809  (1892), 
the  subsequent  conveyance  was  made  toi  a  child  of  the  grantor  in  considera- 
tion of  $10  paid  and  ani  agreement  by  the  Sjrantee  to  pay  annually  to  designated 
persons  the  receipts  from  the  property.     The  property  was  worth  twenty  thou- 


Ch.  8)  PRIORITIES  879 

It  has  been  suggested  that  a  quitclaim  deed  is  notice  of  pre-exist- 
ing equities,  and  that  those  who  claim  under  Josephine  Hayden  had 
notice  that  her  title  to  this  land  was  questionable,  and  that  neither  she 
nor  they  could  defend  upon  the  ground  that  they  were  bona  fide  pur- 
chasers for  valuable  consideration  without  notice  of  the  title  of  the 
true  owner.  Stivers  v.  Home,  62  Mo.  473;  Mann  v.  Best,  62  Mo. 
491 ;  Ridge  way  v.  Holliday,  59  Mo.  444. 

But  the  rule  last  suggested  has  no  application  to  a  case  where  the 
grantee  under  a  subsequent  quitclaim  deed  from  the  same  grantor  ac- 
quired the  title  for  value  and  without  notice  of  the  former  unrecorded 
deed.  Fox  v.  Hall,  74  Mo.  315,  41  Am.  Rep.  316.  "A  purchaser  for 
value  by  quitclaim  deed  is  as  much  within  the  protection  of  the  registry 
act  as  one  who  becomes  a  purchaser  by  a  warranty  deed."  Munson 
V.  Ensor,  94  Mo.  loc.  cit.  509,  7  S.  W.  110;  Campbell  v.  Gas  Co.,  84 
Mo.  352;  Brown  v.  Coal  Co.,  97  111.  214,  VI  Am.  Rep.  105;  Elliott 
V.  Buffington,  149  Mo.  loc.  cit.  676,  51  S.  W.  408;  Ebersole  v.  Rankin, 
102  Mo.  488,  15  S.  W.  422. 

Where  the  controversy  is  between  the  vendee  of  a  duly  recorded 
deed  and  the  vendee  of  a  prior  unrecorded  deed  from  the  same  ven- 
dor, the  settled  rule  of  law  in  this  State  seems  to  be  that  the  considera- 
tion in  the  latter  must  be  such  as  the  law  denominates  a  valuable  con- 
sideration as  distinguished  from  a  good  consideration.  We  know  of 
no  case  which  has  gone  farther  and  holds  that  the  purchaser  under 
the  recorded  deed  must  have  paid  a  full  and  adequate  consideration 
for  the  land. 

If  fraud  is  made  an  issue  in  the  case,  then  the  inadequacy  of  the 
consideration  paid  may  be  taken  into  consideration  with  all  the  other 
facts  and  circumstances  in  the  case  for  the  purpose  of  establishing 
fraud;  but  in  the  absence  of  fraud,  a  want  of  consideration  cannot 
be  shown  against  a  recital  of  consideration  for  the  purpose  of  de- 
feating the  operative  words  of  a  deed.  Bobb  v.  Bobb,  89  Mo.  411, 
4  S.  W.  511;  Henderson  v.  Henderson's  Ex'rs,  13  Mo.  151;  Hol- 
locher,  v.  Hollocher,  62  Mo.  loc.  cit.  273;  McConnell  v.  Brayner, 
63  Mo.  loc.  cit.  463 ;  McCrea  v.  Purmort,  16  Wend.  (N.  Y.)  475,  30 
Am.  Dec.  103;  Farrington  v.  Barr,  36  N.  H.  86;  Kimball  v.  Walker, 
30  in.  511. 


sand  dollars.  Held  that  the  child  was  not  a  purchaser  for  valuable  considera- 
tion under  the  recording  statute  so  as  to  be  preferred  over  an  earlier  unrecord- 
ed deed  of  the  same  grantor.  The  court  said :  "We  deem  it  unnecessary  to 
undertake  to  determine  here  what  degree  of  adequacy  of  price  is  required  to 
uphold  a  subsequent  deed  first  recorded.  Upon  this  branch  of  the  case  we  have 
no  occasion  to  go,  fartlier.  than  to  hold  that  a  small  sum,  inserted  and  paid, 
perhaps  because  of  a  popular  belief  that  some  slight  money  consideration  is 
necessary  to  render  the  deed  valid,  will  not  of  itself  satisfy  the  terms  of  the 
statute,  where  it  appears  upon  the  face  of  the  conveyance,  or  by  other  competent 
evidence,  that  it  was  not  the  actual  consideration." 

See,  also,  Dunn  v.  Bamum,  51  Fed.  355,  2  C.  C.  A.  265  (1S92),  where  the  con- 
sideration for  the  second  conveyance  was  $100,  the  property  then  being  worth 
$30,000,  and  at  time  of  the  suit  $1,000,000. 


880  DERIVATIVE  TITLES  (Part  2 

In  the  case  at  bar,  however,  there  was  no  evidence  introduced  tend- 
ing to  prove  the  recited  consideration  of  five  dollars  was  not  in  fact 
paid. 

Counsel  for  defendant,  in  both  his  oral  and  written  arguments,  con- 
tends that  Josephine  Hayden  procured  her  deed  from  Seth  D.  Hay- 
den  by  fraud.  It  is  a  sufficient  answer  to  that  to  say  that  no  such  issue 
is  made  by  the  pleadings  in  the  case,  nor  was  there  a  word  of  evidence 
introduced  at  the  trial  tending  to  establish  that  fact. 

If  defendant  wished  to  rely  upon  fraud  as  a  defense,  he  should  have 
alleged  and  proved  it.  The  burden  of  proving  such  an  issue  is  upon 
the  defendant.  Jackson  v.  Wood,  88  Mo.  76;  Nauman  v.  Oberle, 
90  Mo.  666,  3  S.  W.  380;  Taylor  v.  Crockett,  123  Mo.  300,  27  S.  W. 
620. 

It  follows  from  what  has  been  said  that  the  judgment  of  the  circuit 
court  must  be  reversed,  and  the  cause  remanded  for  a  new  trial.  All 
concur.^* 


THOMAS  V.  STONE  &  GRAHAM. 

(Court  of  Chancery  of  Mieliisan,  184,3.     Walker  Ch.  117.) 

This  was  a  bill  to  foreclose  a  niortgage. 

The  complainant,  January  31st,  1837,  in  consideration  of  $900,  con- 
veyed to  Stone  certain  real  estate  situate  in  Auburn,  Oakland  county, 
and  took  back  a  mortgage  on  the  same  premises,  for  $800  of  the  pur- 
chase money.  On  the  24th  day  of  August  following,  and  before  the 
mortgage  to  Thomas  was  recorded.  Stone  conveyed  the  premises 
to  Graham  by  warranty  deed,  which  was  recorded  on  the  same  day. 
The  bill  charged  Graham  with  notice  of  the  mortgage  when  he  pur- 
chased, and  that  nothing  had  been  paid  by  him  to  Stone.  Graharn,  by 
his  answer,  denied  all  notice,  and  stated  that,  at  the  time  of  the  exe- 
cution of  the  deed  to  him,  he  executed  and  delivered  to  Stone  his 
obligation  for  $200,  which  was  unpaid,  and  also  a  bond  in  the  penal 
sum  of  $800,  conditioned  to  reconvey  a  part  of  the  premises  to  Stone, 
on  his  .return  from  the  South,  where  he  expected  to  be  gone  five  years. 
The  bill  was  taken  as  confessed  against  Stone,  who  was  a  non-resident 
defendant.  Several  witnesses  were  examined  by  complainant;  and 
Graham,  by  consent  of  the  parties,  was  examined  concerning  the 
consideration  that  had  been  paid  by  him. 

The:  Chancellor.^^  The  mortgage  to  Thomas  and  the  deed  to 
Graham,  were  given  long  before  the  Revised  Statutes  took  effect;  and, 
by  the  statute  in  force  at  the  time  for  the  registry  of  mortgages,  it  was 
provided  that  no  mortgage,  nor  any  deed,  conveyance,  or  writing,  in 
the  nature  of  a  mortgage,  should  defeat  or  prejudice  the  title  or  interr 

24  See,  further,  Browoi  v.  Welch,  IS  111.  343,  GS  Am.  Dec.  549  (1S57). 
25  A  portion  of  the  opinion  is  ouiitted. 


Ch.  8)  PRIORITIES  881 

est  of  any  hcfna  fide  purchaser  of  any  lands  or  tenements,  unless  the 
same  had  been  duly  registered.     Laws  of  Michigan  1833,  p.  284,  §  2. 

A  plea  of  a  bona  fide  purchaser  without  notice  must  aver  not  only  a 
want  of  notice  at  the  time  of  the  purchase,  but  also  at  the  time  of  its 
completion,  and  of  the  payment  of  the  money.  The  money  must  have 
been  actually  paid  before  notice.  If  a  part  has  been  paid,  and  a  part 
remains  unpaid,  the  purchaser  will  be  protected  in  what  he  has  paid, 
but  not  in  any  subsequent  payments  made  by  him.  Frost  v.  Beekman, 
1  Johns.  Ch.  (N.  Y.)  301 ;  Jewett  v.  Palmer,  7  Johns.  Ch.  (N.  Y.) 
.65,  11  Am.  Dec.  401.  This  is  what  is  meant  by  bona  fide  purchaser 
in  the  act  referred  to.  Dickerson  v.  Tillinghast,  4  Paige  (N.  Y.)  215, 
25  Am.  Dec.  528.  There  is  no  difference  "between  a  purchaser  in  good 
faith,  under  the  recording  act,  and  a  bona  fide  purchaser  within  the 
decision  of  Courts  of  Equity  in  other  cases."  Grimstone  v.  Carter,  3 
Paige  (N.  Y.)  421,  24  Am.  Dec.  230.  The  registry  laws  were  designed 
to  protect  subsequent  purchasers  and  mortgagees,  who  had  parted  with 
their  money,  and  taken  a  deed,  against  prior  conveyances  by  their  gran- 
tors, of  which  they  had  no  notice.  They  were  not  made  for  the  protec- 
tion of  prior  purchasers  or  mortgagees,  who  stood  in  need  of  nothing  of 
the  kind.  But  equity  will  not  permit  a  subsequent  purchaser  to  use  what 
the  law  has  placed  in  his  hand  as  a  shield,  for  a  purpose  not  necessary 
to  his  protection,  and  to  the  injury  of  a  prior  bona  fide  purchaser.  By 
the  English  registry  laws  all  prior  conveyances  are  declared  fraudulent 
and  void  against  subsequent  purchasers,  whose  deeds  are  first  re- 
corded. Sug.  on  Vend.  498.  And,  at  law,  the  last  conveyance,  when 
first  .recorded,  carries  with  it  the  legal  title,  although  the  vendee  had 
notice  of  the  prior  conveyance ;  but  in  equity,  where  the  intention  is 
looked  at,  rather  than  the  words  of  the  registry  act,  he  is  held  to  be 
bound  by  the  previous  conveyance.  Sug.  on  Vend.  511,  Ed.  of 
1820. 

Graham  denies  he  had  any  notice  of  the  mortgage  when,  he  pur- 
chased ;  and  there  is  no  positive  evidence  on  that  point.  The  transac- 
tion, when  viewed  in  all  its  parts,  looks  much  like  a  piece  of  con- 
trivance to  defraud  Thomas.  It  is  not  necessary,  however,  to  go  into 
the  testimony ;  for,  admitting  Graham  had  no  notice  of  the  mortgage, 
still  he  is  not  a  bona  fide  purchaser.  He  has  paid  nothing.  It  is  not 
enough  that  the  party  has  secured  the  purchase  money ;  he  must  have 
paid  it,  or  became  bound  for  it  in  such  a  way  that  this  Court  could 
not  relieve  him  from  the  payment  of  it ;  as,  by  a  promissory  note,  which 
had  been  negotiated,  or  the  like.  The  bond  for  $200,  if  it  has  been 
assigned  by  Stone,'  (of  which  there  is  no  evidence,)  would,  in  the  hands 
Qf  the  assignee,  be  subject  to  all  equities  existing  against  it  before  it 
was  assigned.     *     *     * 

Reference  to  Master  to  compute  amount  due,  &c.^* 

2"  What  would  be  the  situation  where  notice  of  the  earlier  conveyance  or 
claim  is  received  after  part,  but  not  all,  of  the  consideration  has  been  paid? 
Aig.Prop. — 56 


882  DERIVATIVE  TITLES  (Part  2 

MARSHALL  v.  ROBERTS. 

(Supreme  Court  of  Minnesota,  1S72,     IS  IMinn.  405  [Gil.  3Go],  10  Am.  Rep.  201.) 

The  plaintiff,  claiming  that  the  defendant  was  the  owner  of  certain 
real  estate,  and  that  after  having  sold  and  conveyed  the  same  to  him, 
and  knowing  his  deed  was  unrecorded,  he  sold  and  conveyed  the  same 
premises  to  other  parties,  who  were  purchasers  in  good  faith,  and 
whose  deeds  were  recorded,  brought  this  action  to  recover  damages 
therefor.  At  the  trial,  after  the  plaintiff'  had  introduced  his  evidence 
and  rested,  the  defendant  moved  for  a  dismissal  of  the  action.  The 
court  granted  the  motion  and  judgment  of  dismissal  was  entered.  The 
plaintiff'  appeals  to  this  court.  The  facts  upon  which  the  decision  is 
based,  are  fully  stated  in  the  opinion  of  the  court. 

Berry,  J.  For  the  purpose  of  determining  the  only  question  neces- 
sary to  be  considered  in  this  case,  we  may  assume  that  the  following 
propositions,  which  plaintiff  claims  to  have  proved,  or  to  have  oft'ered 
to  prove,  are  true  as  matter  of  fact: 

1st.  That  on  the  12th  day  of  May,  1860,  Louis  Roberts  was  the 
owner  of  lot  four,  in  block  four,  of  the  town  of  St.  Paul,  according  to 
the  recorded  plat  thereof. 

2d.  That  on  said  12th  day  of  ]\Iay  said  Roberts,  together  with  his 
wife,  executed  and  delivered  to  the  plaintiff,  Joseph  M.  Marshall,  a 
quit-claim  deed  of  all  their  right,  title,  interest,  claim,  and  demand, 
in  and  to  said  lot,  which  deed  through  inadvertence  on  plaintiff's  part 
has  never  been  recorded. 

3d.  That  on  the  2d  day  of  August,  1865,  said  Roberts  (well  know- 
ing his  deed  to  Marshall,  and  Marshall's  inadvertent  omission  to  have 
the  same  recorded)  for  a  valuable  consideration,  executed  and  deliv- 
ered (his  wife  joining)  to  Uri  L.  Lamprey  a  quit-claim  deed  of  all  their 
right,  title,  interest,  claim  and  demand  in  and  to  said  lot,  which  deed 
was  duly  recorded  August  3d,  1865,  the  said  Lamprey  at  the  time  of 
said  conveyance  to  him,  and  at  the  time  of  paying  the  consideration 
therefor,  having  no  notice  of  the  aforesaid  convevance  to  the  plain- 
tiff. 

4th.  That  on  the  22d  day  of  May,  1867,  said  Lamprey  and  wife,  for 
a  valuable  consideration,  executed  and  delivered  to  William  J.  Cutler 
a  warranty  deed  of  said  lot,  which  was  duly  recorded  on  the  29th  day 
of  May,  1867,  the  said  Cutler  at  the  time  of  such  conveyance  to  him, 
and  at  the  time  of  paying  the  consideration  therefor,  having  no  notice  of 
said  conveyance  to  the  plaintiff,  and  having  purchased  in  good  faith. 

Plaintiff's  claim  is,  that  by  reason  of  defendant's  deed  to  Lamprey^, 
and  the  recording  thereof,  he  (plaintiff)  has  lost  his  title  to  the  lot  in 
question,  and  has  therefore  suffered  damage  to  the  value  of  said  lot, 
which  damage  he  seeks  to  recover  of  defendant  in  this  action. 

Bearing  on  the  general  question,  see  Youst  v.  Martin,  3  Serg.  &  E.  (Pa.)  423 
(1817) ;   Wenz  v.  Pastene,  209  Mass.  359,  95  N.  E.  793  (1911). 


Ch.  S)  PRIORITIES  '  883 

If  the  deed  from  Roberts  to  plaintiff  conveyed  nothing  to  plain- 
tiff, the  subsequent  deed  to  Lamprey  can  have  taken  nothing  away 
from  him,  or,  in  other  words,  it  cannot  have  damaged  the  plaintiff. 

If  on  the  other  hand,  as  would  appear  from  the  facts  before  as- 
sumed, the  deed  from  Roberts  to  plaintiff  conveyed  a  good,  title  to 
the  lot  in  question,  or  any  right,  title,  interest,  claim  or  demand  in  or  to 
it,  then,  neither  such  good  title,  nor  any  such  right,  title,  interest,  claim 
or  demand,  could  be  taken  away  or  impaired  by  the  subsequent  con- 
veyance to  Lamprey.  For  the  deed  to  Lamprey  is  a  quit-claim  deed 
in  common  form,  the  effect  of  which,  under  our  statute,  is  to  pass 
such  estate  as  the  grantor  could  lawfully  convey  by  the  ordinary  deed 
of  bargain  and  sale.  In  Martin  v.  Brown,  4  Minn.  291  (Gil.  201), 
it  is  held  that  the  legislature  by  the  words  "lawfully  convey,"  intend  to 
limit  the  estate  conveyed  by  a  qmt-claim  deed;  to  such  as  the  gran- 
tor has  a  legal  right  to  convey,  and  that  as  he  "may  not  lawfully  con- 
vey land  which  he  has  already  conveyed  to  another,  nothing  passes 
by  such  deed  beyond  the  grantor's  actual  interest  at  the  time  of  the 
conveyance.  And  in  Hope  v.  Stone,  10  Minn.  152  (Gil.  114),  where 
there  was  a  conveyance  (by  warranty  deed)  of  all  the  right,  title,  in- 
terest, etc.,  etc.,  of  the  grantor  in  and  to  certain  land,  it  was  held 
that  nothing  passed  to  the  grantees  by  the  conveyance  which  the  gran- 
tor had  previously  conveyed  to  the  other  parties.  See  also  cases 
there  cited.  In  Everest  v.  Ferris,  16  Minn.  26  (Gil.  14),  the  rule  thus 
laid  down  in  Martin  v.  Brown,  is  reiterated ;  and  independently  (so 
far  as  appears)  of  any  statute,  it  is  held  in  May  v.  Le  Claire,  11  Wall. 
232,  20  L.  Ed.  50,  that  a  party  who  has  acquired  his  title  by  a  quit- 
claim deed  cannot  be  regarded  as  a  bona  fide  purchaser  without 
notice,  and  that  such  conveyance  passes  the  title  as  the  grantor  held 
it,  and  the  grantee  takes  only  what  the  grantor  could  lawfully  convey. 

The  provisions  of  our  statute  in  regard  to  the  effect  of  recording 
and  failing  to  record  deeds,  are  also  in  entire  harmony  with  the  views 
expressed  in  the  case  cited.  Section  54,  ch.  35,  Pub.  Stat.,  which  seems 
to  have  been  in  force  at  the  time  when  Roberts  made  the  deed  to 
Lamprey,  enacts  that  every  conveyance  by  deed,  &c.,  shall  be  recorded, 
&c.,  and  that  every  such  conveyance  not  so  recorded  shall  be  void, 
as  against  any  subsequent  purchaser  in  good  faith  and  for  a  valuable 
consideration,  of  the  same  real  estate  or  any  portion  thereof,  whose 
conveyance  shall  be  first  duly  recorded.  Substantially  the  same  pro- 
visions as  those  above  mentioned,  are  also  found  in  section  24,  c.  46, 
Rev.  Stat,  and  section  21,  c.  40,  Gen.  Stat.,  so  that  our  statute  in  this 
particular  seems  to  have  remained  unchanged.  These  provisions,  as 
will  appear  upon  a  moment's  reflection,  so  far  from  militating  against 
the  views  expressed  in  the  cases  cited,  come  to  their  aid,  since  it  is 
only  the  purchaser  of  the  same  real  estate,  or  any  portion  thereof,  who 
by  his  priority  of  record  cuts  out  the  title  of  a  prior  purchaser.  For 
when  the  second  purchaser  obtains  by  his  quit-claim  deed  only  what 
his  grantor  had  (his  grantor's  right,  title  and  interest)   at  the   time 


884  '  DERIVATIVE  TITLES  (Part  2 

when  such  deed  was  made,  he  is  not  a  purchaser  of  the  same  real 
estate  (or  any  part  thereof)  which  his  grantor  had  previous!}'  conveyed 
away  and  therefore  no  longer  has.  But  besides  this,  the  grantee  in  a 
quit-claim  deed  like  that  from  Roberts  to  Lamprey,  though  he  may 
not  in  fact  have  known  that  his  grantor  had  previously  conveyed  the 
described  premises  to  another,  and  though  he  may  not  in  fact  have  in- 
tended to  defraud  such  prior  grantee,  is  not  a  purchaser  in  good  faith 
as  against  such  prior  grantee,  for  nothing  is  attempted  to  be  trans- 
ferred to  him,  except  whatever  right,  title,  &c.,  the  grantor  has  at  the 
time  when  the  quit-claim  deed  is  executed,  so  that  as  in  the  case  of 
Hope  V.  Stone  the  very  terms  of  the  deed  are  notice  of  the  existence 
of  the  rights  which  have  been  conferred  upon  such  prior  grantee,  or 
any  other  person. 

These  considerations,  as  it  seems  to  us,  dispose  of  this  case  and  pre- 
vent us  from  reaching  the  questions  mainly  discussed  by  plaintiff's 
counsel.  The  judgment  entered  below  dismissing  the  action  is  af- 
firmed.^^ 

2  7  American  Mortsr.  Co.  v.  Hutchinson,  19  Or.  ?,?A,  24  Pac  515  (1S90),  ace. 
Wickhani  v.  Hentliorn,  91  Iowa,  242,  59  N.  W.  276  (1894);  Reed  v.  Knights. 
87  I\Ie.  181,  32  Atl.  870  (1895) ;  Messenger  v.  Peter,  129  Mich.  93,  88  N.  W.  209 
(1901) ;  Fowler  v.  Will,  19  S.  D.  131,  102  N.  W.  598,  117  Am.  St.  Rep.  938,  8 
Ann.  Cas.  1093  (1905) ;  Thorn  v.  Newsom,  64  Tex.  161,  53  Ain.  Rep.  747  (1885), 
accord  in  result. 

"Under  the  cloak  of  quitclaim  deeds,  schemers  and  speculators  close  their 
eyes  to  honest  and  reasonable  inquiries,  and  traffic  in  apparent  imperfections  in 
titles.  The  usual  methods  of  conveying  a  good  title — one  in  which  the  grantor 
has  confidence — is  by  warranty  deed.  The  usual  method  of  conveying  a  doubt- 
ful title  is  by  quitclaim  deed.  The  rule  is  wise  and  wholesome  which  holds 
that  those  who  take  by  quitclaim  deed  are  not  bona  fide  purchasers,  and  take 
only  the  interest  which  their  grantors  had."  Peters  v.  Cartier,  80  Mich.  124, 
129,  45  N.  W.  73,  74,  20  Am.  St.  Rep.  508  (1890). 

"While  nonregistered  deeds  are  declared  void  by  the  statute  as  to  subse- 
quent purchasers  for  value  and  v\-ithout  notice,  still  the  doctrine  is  well  settled 
that  a  subsequent  purchaser,  although  for  value  and  without  actual  notice. 
who  takes  under  strictly  a  quitclaim  deed — that  is,  one  by  which  the  chance  of 
title,  and  not  the  land  itself,  is  conveyed — will  not  be  accorded  the  protection 
of  the  statute,  for  the  obvious  reason  that  he  contracted  for  the  interest  only 
that  his  vendor  then  had  in  the  land.  If  the  vendor  had  previously  divested 
liiuiself  of  the  title  to  a  portion  or  all  of  the  land,  to  the  extent  of  the  divesti- 
ture there  would  be  no  right  remaining  in  the  vendor  to  pass  by  the  quitclaim 
to  the  vendee.  It  is,  then,  the  interest  of  the  vendor  for  which  he  contracts, 
and  it  is  to  such  interest  only  that  he  is  entitled  under  the  quitclaim  deed." 
Thorn  v.  Newsom,  supra. 

After  the  decision  in  Marshall  v.  Roberts,  the  Minnesota  Legislature  amend- 
ed the  recording  statute  so  that  a  grantee  in  a  subsequent  quitclaim  deed 
would  be  on  the  same  footing,  as  to  prior  imrecorded  deeds,  as  a  grantee  iu  a 
bargain  and  sale  deed.  Strong  v.  Lynn,  38  Minn.  315,  37  N.  W.  448  (1888).  And 
in  Maine  the  rule  of  Reed  v.  Knights,  supra,  has  been  changed  by  statute. 
Rev.  St.  1903,  c.  75,  §  11. 


Ch.  8)  PRIORITIES  885 

SMITH'S  HEIRS  v.  BRANCH  BANK  AT  MOBILE. 
(Supreme  Court  of  Alabama,  1852.    21  Ala.  125.) 

Chilton,  J.^^  In  order  to  disembarrass  this  case  from  the  confu- 
sion in  which  so  many  mesne  conveyances  involve  it,  we  may  con- 
sider Smith,  the  defendant,  as  the  vendor  to  Dubose  and  Kibbe,  and 
as  holding  their  mortgage  to  secure  the  purchase  money.  We  may 
then,  without  changing  the  legal  effect  of  the  facts,  lay  out  of  view  the 
sale  to  Meggison  by  D.  and  K.,  and  the  foreclosure  of  the  mortgage 
taken  by  them ;  since  the  land  was  purchased  by  their  agent,  J.  C.  Du- 
bose, who  was  the  mere  conduit  for  convenience  sake  of  the  interest 
of  Dubose  and  Kibbe  to  the  Bank. 

It  is  too  clear  to  admit  of  doubt,  that  an  unrecorded  mortgage,  as 
between  the  parties  themselves,  is  vafid  and  binding.  It  is  also  valid  as 
to  all  subsequent  creditors  or  purchasers  with  notice  of  its  existence. 
Smith  V.  Zurcher,  9  Ala.  208 ;  Myers  v.  Peek's  Adm'r,  2  Ala.  648 ;  Tut- 
tle  V.  Jackson,  6  Wend.  (N.  Y.)  226,  21  Am.  Dec.  306. 

It  is  equally  clear,  that  if  the  mortgagor  sells  the  land  to  an  innocent 
bona  fide  purchaser,  taking  a  mortgage  from  him  to  secure  the  purchase 
money,  and  obtains  a  decree  of  sale  upon  a  foreclosure  suit,  at  which, 
by  himself  or  his  agent,  he  becomes  the  purchaser,  he  is  not  in  a  condi 
tion  to  invoke  the  protection  afforded  a  bona  fide  purchaser  without 
notice,  so  as  to  defeat  the  mortgage  he  has  executed  to  his  vendor ;  for 
this  would  be  to  take  advantage  of  his  own  wrong.  "His  conscience," 
says  Judge  Story,  "is  still  bound  by  his  meditated  fraud,  and  if  the 
estate  revests  In  him,  the  original  rights  attach."  1  Story's  Eq.  §  410. 
The  case,  then,  resolves  itself  into  this :  Considering  Dubose  and 
Kibbe  as  mortgagors  to  Smith,  whose  mortgage  was  not  recorded,  and 
as  the  vendors  to  the  Bank,  through  their  agent,  J.  C.  Dubose,  who 
swears  he  was  a  mere  naked  trustee,  without  any  interest  whatever, 
does  the  Bank,  under  the  circumstances,  and  in  view  of  the  character  of 
the  deed  executed  to  it,  occupy  the  position  of  a  bona  fide  purchaser 
for  a  valuable  consideration  without  notice,  within  the  meaning  of  our 
statutes  declaring  mortgages  of  real  estate  not  recorded  within  sixty 
days  to  be  void  as  against  such  purchasers  ? 

The  instrument  under  which  the  Bank  claims,  is  a  quit  claim  deed,  or, 
what  is  more  appropriately  designated  by  the  common  law  term,  a  re- 
lease. The  effective  words  are,  "that  the  said  Dubose  doth  remise,  re- 
lease and  forever  quit  claim,  all  his  right,  title,  claim,  &c.,  unto  the  said 
Branch  Bank,  in  the  full  and  actual  possession  now  being,  and  its  suc- 
cessors and  assigns  forever."  It  is  said,  in  the  Touchstone  (p.  320)  that 
the  words  most  common  and  appropriate  in  a  release,  are,  remisi,  relax- 
avi,  and  quietum  clamavi ;  and  that  a  release  may  enure  by  way  of 
passing  the  estate,  as  where  one  joint  tenant  or  co-parcener  releases 

28  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted.  The  case 
api)ears  from  the  opinion. 


886  DERIVATIVE  TITLES  (Part  2 

his  right  to  the  other ;  or  by  way  of  passing  the  right,  as  where  the  dis- 
seisee releases  to  the  disseisor ;  or,  it  may  operate  by  way  of  enlarging 
an  estate,  where  the  releasee  has  an  estate  capable  of  being  enlarged, 
and  is  in  privity  with  the  releasor ;  or  by  way  of  extinguishment.  Gilb. 
on  Ten.  55;  Shep.  Touch.  321 ;  Co.  Lit.  272;  Bouv.  Inst.  vol.  2,  p.  412. 

At  the  common  law,  it  is  said,  a  freehold  title  could  be  released  in 
five  ways:  1.  To  the  tenant  of  the  freehold  in  fact  or  in  law  without 
any  privity ;  2.  To  the  remainder-man ;  3.  To  the  reversioner  without 
privity ;  4.  To  one  having  a  right  only  by  privity ;  and,  5.  To  one  hav-* 
ing  a  privity  only  without  right.  2  Bouv.  Inst.  412;  Gilb.  Ten.  53 ;  Co. 
Lit.  265.  So  that,  according  to  the  principles  of  tlie  common  law  gov- 
erning releases,  the  Bank,  the  releasee  in  this  case,  filling  none  of  the 
above  requisites,  would  not  take  the  title  of  the  releasor.  But  in  this 
country,  the  technical  rules  relating  to  a  release  are  generally  held 
not  to  apply,  and  a  quit  claim  deed  is  considered  as  passing  the  title  of 
the  releasor,  without  any  warranty  as  to  outstanding  titles  or  incum- 
brances, but  merely  against  the  grantor  himself,  and  those  claiming 
under  him,  by  descent,  or  by  subsequent  conveyances  of  the  same  inter- 
est previously  transferred. 

The  grantor  in  this  case  only  purports  to  release  and  quit  claim  the 
title  and  interest  which  he  had.  The  question  then  arises,  what  interest 
did  he  have?  The  plain  answer  is,  the  mere  equity  of  redemption, 
nothing  more,  and  this  only  passed  by  the  quit  claim  deed.  Thus  the 
Bank  stands  in  the  place  of  Dubose  and  Kibbe,  the  mortgagors,  holding 
only  what  they  could  sell,  the  equity  of  redemption. 

Were  we  to  hold  that  M.  Dubose  intended  that  his  agent,  J.  C.  Du- 
bose, should  sell  a  greater  interest  than  he  really  had,  and  by  so  doing 
enable  the  Bank  to  shelter  itself  under  the  plea  of  being  a  bona  fide 
purchaser  for  a  valuable  consideration,  so  as  to  defeat  the  mortgage 
which  D.  and  K.  had  executed  to  Anderson,  we  should  impute  a  fraud- 
ulent intent  to  the  parties  when  the  deed  which  their  agent  has  entered 
into  justifies  no  such  inference. 

The  unregistered  mortgage  being  valid  and  effectual  as  between  the 
mortgagor  and  mortgagee,  the  subsequent  sale  of  the  entire  estate  by 
the  mortgagor  is  a  fraud  upon  the  rights  of  the  mortgagee ;  and  the 
reason,  I  apprehend,  upon  which  the  statute  proceeds  in  preferring  the 
subsequent  bona  fide  purchaser  to  the  mortgagee,  is,  that  one  of  two 
innocent  persons  must  suffer  by  the  fraud  of  a  third  party,  and  the 
mortgagee,  failing  to  use  the  diligence  which  the  statute  requires  in 
recording  his  mortgage,  is  considered  most  in  default,  and  is  therefore 
properly  adjudged  by  the  statute  to  bear  the  loss. 

But  we  are  not  allowed  by  the  rules  of  law,  any  more  than  by  the 
principles  of  common  charity,  to  suppose  fraud,  when  the  facts  out  of 
which  it  is  supposed  to  arise  may  well  consist  with  honesty  and  pure 
intention.     Steele  v.  Kinkle  &  Lehr,  3  Ala.  352. 

We  cannot,  therefore,  in  this  case  presume  that  the  vendor  of  the 
Bank  attempted  to  sell  more  than  he  might  lawfully  sell,  which  was 


Ch.  8)  PRIORITIES  887 

the  equity  of  redemption.  This  was  his  title,  and  this  alone  enures  by 
the  quit  claim. 

To  enlarge  the  interest  by  construction,  would  be  to  make  a  different 
contract  from  that  which  the  parties  have  entered  into;  would  be,  by 
judicial  interpretation,  contrary  to  the  face  of  the  deed  and  the  facts 
on  which  it  is  founded,  to  pass  the  entire  estate,  by  investing  it  with 
the  consequences  of  a  fraudulent  sale  of  the  whole,  when  the  grantor 
had  but  the  equity  of  redemption ;  and  this,  too,  for  the  purpose  of  de- 
feating the  just  lien  of  Smith  for  the  purchase  money  which  is  due 
from  Dubose  and  Kibbe.  We  feel  quite  confident  no  case  can  be  found 
which  carries  the  doctrine  thus  far. 

The  case  of  Oliver  v.  Piatt,  3  How.  (U.  S.)  333-410,  11  L.  Ed.  622, 
v/hich  is  cited  with  seeming  approval  by  this  court  in  Walker  et  al.  v. 
Miller  &  Co.,  11  Ala.  1067,  fully  sustains  us  in  tlie  position,  that  the 
Bank,  holding  a  mere  quit  claim  deed,  cannot  be  regarded  as  a  bona 
fide  purchaser  for  a  valuable  consideration  without  notice.  And  we 
see  no  reason  why  such  purchaser  should  be  allowed  to  invoke  the  aid 
of  the  registry  statute,  to  avoid  a  prior  mortgage  which  has  not  been 
recorded,  any  more  than  the  aid  of  tlie  Chancery  Court  for  his  pro- 
tection. 

We  express  no  opinion  as  to  what  we  should  decide,  had  the  deed  to 
the  Bank,  even  though  it  contained  no  warranty,  purported  to  convey 
the  entire  title  to  the  premises,  instead  merely  of  that  which  the  gran- 
tor had.  But  we  desire  to  limit  our  opinion  to  tlie  facts  of  the  case 
before  us,  lest  parties  should  be  misled  as  to  the  extent  of  jt.     *     *     * 

After  the  best  consideration  we  have  been  able  to  bestow  upon  this 
case,  we  are  satisfied  that  the  court  mistook  the  law  in  several  of  the 
charges  given.  Its  judgment  must,  therefore,  be  reversed,  and  the 
cause  remanded. 


BOYNTON  v.  HAGGART. 
(Circuit  Court  of  Appeals,  Eighth  Circuit,  190.3.     120  Fed.  819,  57  C.  C.  A.  .301.) 

Sanborn,  Circuit  Judge.  These  appeals  present  controversies  be- 
tween three  sets  of  claimants  to  the  title  to  certain  timber  lands  in  the 
state  of  Arkansas.  Lucetta  B.  Boynton  and  her  associates,  the  com- 
plainants below,  are  the  devisees  under  the  will  of  C.  O.  Boynton,  de- 
ceased, who  brought  this  suit  against  James  Haggart  and  William  Mc^ 
Masters,  hereafter  called  the  "defendants,"  to  quiet  in  himself  the  title 
to  about  20,000  acres  of  land  which  he  bought  of  the  Citizens'  Bank 
of  Louisiana  in  the  year  1883.  L.  D.  Rozell  and  his  associates,  the 
heirs  of  A.  B.  Rozell,  deceased,  intervened  in  this  suit,  and  claimed  the 
title  to  a  portion  of  these  lands.  There  was  a  hearing  and  a  decree  for 
the  defendants,  which  the  complainants  and  the  interveners  challenge 
by  separate  appeals. 

The  principal  question  which  the  appeal  of  the  complainants  presents 
is  whether  or  not  an  innocent  purchaser  under  a  deed  of  all  the  right. 


S88  DERIVATIVE  TITLES  (Part  2 

title,  and  interest  in  the  lands  owned  by  his  grantor  in  a  certain  state, 
without  a  more  definite  description,  may  successfully  hold  the  lands 
which  his  grantor  appeared  by  the  registry  to  own  when  he  made  this 
deed  as  against  a  claimant  under  a  prior  unrecorded  conveyance  of  the 
same  lands  by  the  same  grantor.  The  question  arises  in  this  way: 
From  1873  until  October  26,  1883,  the  records  of  the  counties  in  which 
these  lands  were  situated  disclosed  a  complete  chain  of  title  to  them 
from  D.  C.  Cross,  the  grantee  of  the  state  of  Arkansas,  to  the  Citizens' 
Bank  of  Louisiana.  On  Alay  3,  1880,  however,  a  decree  had  been  ren- 
dered in  one  of  the  courts  of  the  state  of  Arkansas  in  a  suit  between 
the  executor,  the  executrix,  and  the  devisees  of  the  will  of  Jeptha 
Fowlkes,  complainants,  and  the  Citizens'  Bank  of  Louisiana,  defend- 
ant, to  the  effect  that  the  heirs  of  Jeptha  Fowlkes  were  the  owners  of 
this  land,  and  that  the  bank  had  no  title  or  interest  in  it.  One  of  the 
statutes  of  the  state  of  Arkansas  required  those  in  whose  favor  such 
a  decree  was  rendered  to  register  it  in  the  recorder's  office  of  the  coun- 
ty in  which  the  lands  it  affected  were  situated  within  one  year  after  its 
rendition,  and  provided  that,  "if  such  decree  be  not  recorded  within 
such  time,  it  shall  be  void  as  to  all  subsequent  purchasers  without  no- 
tice." Gould's  Digest  of  the  Laws  of  Arkansas,  p.  637,  §  35.  This, 
decree  was  not  recorded  until  November  4,  1884. 

Meanwhile,  and  in  the  year  1883,  W.  L.  Culbertson,  the  agent  and 
associate  of  C.  O.  Boynton,  without  any  notice  of  this  decree,  pur- 
chased the  lands  in  controversy  in  this  suit  from  the  Citizens'  Bank  of 
Louisiana,  paid  that  bank  $13,000  therefor,  and  took  and  recorded  a 
quitclaim  deed  from  it  to  himself  of  "all  and  singular  its  right,  title, 
interest,  and  claim  of  whatever  nature,  legal  and  equitable  in  and  to 
all  the  lands,  lots,  and  parcels  of  land  and  any  and  all  interests  in  the 
same  belonging  to  and  owned  by  said  Citizens'  Bank  of  Louisiana,  in 
the  state  of  Arkansas,  at  the  date  of  this  conveyance  (except  its  lands 
and  interest  in  Chicot  county  in  said  state) ;  the  said  lands  and  interests 
therein  conveyed  being  situated  and  lying  within  the  counties  of  Clay, 
Crittenden,  Craighead,  Cross,  Greene,  Mississippi,  Poinsett,  and  Wood- 
ruff, in  the  said  state  of  Arkansas ;  and  this  conveyance  to  operate  and 
be  as  absolute,  full  and  complete  as  if  the  said  lands  and  interests  afore- 
said were  herein  specifically  described."  Before  making  this  purchase, 
Culbertson  procured  a  list  of  these  lands,  and  an  abstract  of  the  re- 
Gorded  title  to  them,  from  which  it  appeared  that  the  bank  had  a  per- 
fect record  title  to  them,  subject  only  to  a  tax  title,  which  Culbertson 
bought  at  the  same  time  that  he  purchased  the  lands  from  the  bank. 
He  secured  his  deed  from  the  bank  on  September  26,  1883,  and  re- 
corded it  on  October  26,  1883.  C.  O.  Boynton,  his  principal,  furnished 
the  money  to  make  this  purchase,  and  on  October  23,  1883,  Culbertson 
conveyed  the  lands  in  controversy  in  this  suit  to  Boynton  by  means  of  a 
warranty  deed  which  describes  them  by  government  subdivisions,  and 
this  deed  was  recorded  on  October  29,  1883.  Culbertson  appears  to 
have  been  interested  with  Boynton  in  the  purchase  of  the  lands,  but 


Ch.  8)  PRIORITIES  889 

what  his  interest  was  does  not  appear.  The  title  of  the  complainants 
rests  upon  the  purchase  from  the  bank  and  the  conveyance  to  Boynton 
while  he  was  ignorant  of  the  existence  of  the  decree.  The  defendants 
have  succeeded  to  the  title  of  the  heirs  of  Fowlkes  under  their  decree 
against  the  bank  of  May  3,  1880,  and  the  question  is  whether  that  title 
or  that  of  the  devisees  of  Boynton  should  prevail. 

Counsel  for  the  defendants  argue  that  the  deed  from  the  bank  to 
Culbertson  conveyed  only  the  lands  which  the  bank  owned  at  the  date 
of  the  deed,  and  that,  as  the  title  to  the  lands  here  in  question  had  been 
devested  from  the  bank  before  the  deed  to  Culbertson  was  made  by  the 
decree  of  May  3,  1880,  and  as  the  bank  did  not  in  fact  own  any  right, 
title,  or  interest  in  the  lands  when  it  made  this  deed,  the  deed  conveyed 
nothing,  and  the  purchasers  took  nothing  thereby.  In  support  of  this 
contention  they  cite  Brown  v.  Jackson,  3  Wheat.  449,  4  L.  Ed.  432. 
That  was  the  first  of  a  long  line  of  decisions  rendered  by  the  Supreme 
Court  in  which  it  held  that  the  grantee  in  a  quitclaim  deed  could  not 
become  a  bona  fide  purchaser  under  the  registry  statutes  because  the 
prior  deed  had  conveyed  all  that  the  grantor  had,  and  the  form  of  the 
quitclaim  deed  was  notice  of  that  fact  to  its  grantee.  Oliver  v.  Piatt,  3 
How.  333,  11  L.  Ed.  622;  Van  Rensselaer  v.  Kearney,  11  How.  297, 
13  L.  Ed.  '703;  May  v.  Le  Claire,  11  Wall.  217,  20  L.  Ed.  50;  Villa  v. 
Rodriguez,  12  Wall.  323,  20  L.  Ed.  406;  Dickerson  v.  Colgrove,  100 
U.  S.  578,  25  L.  Ed.  618;  Baker  v.  Humphrey,  101  U.  S.  494,  25  L. 
Ed.  1065 ;  Hanrick  v.  Patrick,  119  U.  S.  156,  7  Sup.  Ct.  147,  30  L.  Ed. 
396. 

Counsel  for  the  interveners  cite  the  cases  of  Adams  v.  Cuddy,  13 
Pick.  (Mass.)  460,  25  Am.  Dec.  330;  Jamaica  Corporation  v.  Chandler, 
9  Allen  (Mass.)  159,  169;  Chaffin  v.  Chaffin,  4  Gray  (Mass.)  280;  Fitz- 
gerald V.  Libby,  142  Mass.  235,  7  N.  E.  917;  and  Eaton  v.  Trowbridge, 
38  Mich.  454,  in  support  of  the  position  of  the  defendants.  But  these 
decisions  fail  to  give  any  adequate  effect  or  force  to  the  estoppel  of 
the  registry  statutes,  and  are  in  accord  with  the  early  holdings  of  the 
Supreme  Court  regarding  the  effect  of  a  quitclaim  deed.  The  riper 
experience  and  more  thoughtful  consideration  of  later  years  have  ex- 
ploded the  fallacy  upon  which  the  earlier  decisions  of  tlie  Supreme 
Court  rested,  and  have  led  the  court  to  adopt  the  rule  which  has  now 
become  firmly  established  both  upon  reason  and  authority  that  the  inno- 
cent purchaser  under  a  quitclaim  deed  may  acquire  the  title  under  the 
registry  statutes  as  against  the  holder  of  a  prior  unrecorded  deed  from 
the  same  grantor  not^^^ithstanding  the  fact  that  the  latter  had  no  title, 
and  had  nothing  to  convey  when  he  executed  his  second  deed.  Moetle 
V.  Sherwood,  148  U.  S.  21,  29,  30,  13  Sup.  Ct.  426,  37  L.  Ed.  350; 
United  States  v.  California,  etc.,  Land  Co.,  148  U.  S.  31,  47,  48,  13  Sup. 
Ct.  458,  37  L.  Ed.  354;  Prentice  v.  Duluth  Forwarding  Co.,  58  Fed. 
437,  447,  7  C.  C.  A.  293,  303 ;  Memphis  Land  &  Timber  Co.  v.  Ford,  58 
Fed.  452,  7  C.  C.  A.  304. 


890  DERIVATIVE  TITLES  (Part  2 

No  reason  is  perceived  why  the  case  at  bar  should  not  be  governed 
by  this  just  and  sakitary  rule.  Registry  statutes  are  legislative  exten- 
sions of  the  doctrine  of  estoppel.  They  forbid  those  who  have,  and 
yet  withhold  from  the  record,  their  muniments  of  title,  from  asserting 
the  title  those  muniments  disclose  against  others  who  have  innocently 
purchased  the  land  from  him  who  appears  by  the  record  to  be  the  owner 
while  the  holders  of  the  real  title  silently  conceal  it.  They  rest  upon 
and  enforce  the  equitable  proposition  tliat  he  who  knowingly  conceals 
his  ownership  when  he  ought  to  disclose  it  shall  not  assert  it  to  the 
detriment  of  his  neighbor  who  has  acted  in  reliance  upon  his  silence. 
When  Culbertson  purchased  these  lands,  the  record  disclosed  a  perfect 
•title  to  them  in  the  bank.  That  record  was  evidence  of  title  both  in  the 
courts  of  the  land  and  in  the  ordinary  commercial  transactions  of  men. 
Gould's  Digest,  p.  268,  §  26.  The  agent  of  the  vendor,  the  bank,  fur- 
nished to  the  purchaser  a  list  of  these  lands,  and  offered  to  sell  them 
to  him  for  his  principal.  Culbertson  took  the  list,  procured  an  abstract 
of  the  record  title  to  the  lands  it  described,  and  bought  them  in  reliance 
upon  the  representation  which  the  record  and  the  silence  and  inaction 
of  the  grantors  of  the  defendants  exhibited. 

The  defendants,  or  those  under  whom  they  claim,  in  violation  of  the 
statute,  which  required  them  to  record  the  decree  of  May  3,  1880, 
which  had  devested  the  title  of  the  bank,  silently  withheld  it  from  the 
record,  and  thereby  induced,  or  at  least  permitted,  Culbertson  and 
Boynton  to  buy  from  one  who  had  no  actual  title.  May  they  now  be 
allowed  to  avail  themselves  of  tliat  decree,  to  deprive  these  vendees 
of  the  land,  and  to  entail  upon  them  the  loss  of  their  purchase  money? 
The  question  is  answered  by  the  salutary  statute  of  Arkansas.  It  de- 
clares that,  if  such  a  decree  is  not  recorded  within  one  year  after  its 
rendition,  "it  shall  be  void  as.  to  all  subsequent  purchasers  without  no- 
tice." The  evidence  is  satisfactory — nay,  it  is  conclusive — that  Cul- 
bertson and  Boynton  were  subsequent  purchasers  of  these  lands  with- 
out notice  of  this  decree,  and  they  fall  far  within  both  the  reason  and 
the*  terms  of  the  statute  whose  protection  they  invoke. 

It  is  true,  as  counsel  insist,  that,  in  the  absence  of  the  estoppel  of 
the  registry  statutes,  a  conveyance  of  what  one  owns  carries  nothing 
which  he  does  not  own,  and  that  under  tliat  rule  the  deed  to  Culbertson 
conveyed  nothing,  because  the  bank  had  nothing  when  it  was  made. 
But  the  question  here  is  not  what  the  bank  owned  when  that  deed  was 
made.  It  is  not  what  the  bank  could  convey.  It  is  what  the  bank  ap- 
peared to  own  by  tlie  authorized  records  of  the  counties  in  which  these 
lands  were  situated.  The  statute  and  the  negligence  of  the  defendants, 
or  of  their  grantors,  estop  them  from  proving,  or  from  successfully 
claiming,  that  the  title  to  these  lands  was  other  than  that  which  they 
permitted  it  to  appear  to  be  upon  these  records  when  Culbertson  and 
Boynton  bought.  The  contention  that  the  grantor  had  nothing  when 
this  deed  was  made,  and  hence  that  the  purchasers  acquired  nothing  by 
it,  proves  too  much.     It  applies  with  equal  cogency  to  the  purchaser 


Ch.  8)  PRIORITIES  891 

under  every  deed  subsequent  to  a  prior  unrecorded  conveyance,  and 
its  adoption  would  annul  every  statute  of  registration,  for  it  may  be 
said  with  equal  truth  of  every  such  subsequent  conveyance  that  the 
grantor  has  nothing  when  he  makes  it,  and  tlierefcre  the  subsequent 
purchaser  can  take  nothing. 

The  argument  is  fallacious,  because  it  utterly  ignores  the  purpose, 
the  policy,  and  the  effect  of  the  statutes  of  registration.  It  is  the  pur- 
pose and  the  legal  effect  of  these  statutes  to  make  the  title  that  ap- 
pears of  record — the  record  title — superior  in  tlie  hands  of  an  inno- 
cent purchaser  for  value  to  the  real  title  that  is  withheld  from  regis- 
tration. Hence,  while  one  who  has  parted  with  his  title  to  land  by  an 
unrecorded  deed  or  decree  has  no  title  or  interest  remaining  in  himself, 
yet  his  deed  to  an  innocent  purchaser  for  value,  by  virtue  of  the  regis- 
try statutes,  avoids  the  effect  of  the  prior  unrecorded  deed  or  decree, 
and  vests  the  title  to  the  land  in  the  subsequent  purchaser  to  the  same 
extent  as  it  would  have  done  if  the  title  of  record  had  been  the  real 
title.  The  holders  of  unrecorded  instruments  are  estopped  by  the  stat- 
ute and  their  negligence  from  denying  that  tlie  record  title  is  the  real 
title.  Memphis  Land  &  Timber  Co.  v.  Ford,  58  Fed.  452,  455,  456,  7 
C.  C.  A.  304,  307,  308.  The  defendants  cannot  be  heard  to  say,  as 
against  Culbertson,  Boynton,  and  their  successors  in  interest,  that  the 
Citizens'  Bank  of  Louisiana  was  not  the  owner  of  the  lands  which  it 
appeared  by  the  records  of  the  counties  to  be  the  owner  of  when  Cul- 
bertson and  Boynton  made  their  purchase. 

There  is  another  reason  why  the  title  of  the  complainants  must  pre- 
vail. Boynton  was  not  only  an  innocent  purchaser  of  these  lands,  but 
he  secured  them  in  October,  1883,  by  means  of  a  warranty  deed  from 
Culbertson,  which  properly  described  and  conveyed  them  to  him  by 
government  subdivisions.  If  Culbertson  could  not  have  claimed  the 
benefit  of  the  estoppel  of  the  registry  statute  because  the  deed  to  him 
did  not  specifically  describe  the  lands,  Boynton  was  under  no  such 
disability.  Even  in  those  courts  'in  which  the  rule  once  prevailed  that 
one  who  takes  under  a  quitclaim  deed  cannot  be  a  bona  fide  purchaser, 
that  rule  was  sometimes  limited  to  the  grantee  in  such  a  deed.  It  did 
not  apply  to  those  who  succeeded  to  the  title  of  such  a  grantee  by  deeds 
of  bargain  and  sale  or  by  warranty  deeds,  and  this  was  a  reasonable 
limitation.  Snowden  v.  Tyler,  21  Neb.  199,  31  N.  W.  661 ;  United 
States  V.  California,  etc..  Land  Co.,  148  U.  S.  31,  47,  13  Sup.  Ct.  458, 
?i7  L.  Ed.  354.  The  form  of  the  deed  to  Culbertson,  his  grantor,  did 
not  charge  Boynton  with  notice  of  the  unrecorded  decree  against  the 
bank,  or  of  any  other  defect  in  its  title,  even  if  it  could  have  charged 
Culbertson.  A  subsequent  purchaser  of  lands  properly  described  in  a 
warranty  deed  to  himself  is  not  charged  with  notice  of  unrecorded  con- 
veyances or  decrees  by  the  fact  that  somie  prior  deed  in  the  chain  o.^ 
title  is  a  quitclaim  deed,  or  conveys  only  the  lands  which  the  grantor 
then  owned,  or  of  which  some  apparent  owner  died  seised;  or  which 
some  bankrupt  owned  at  the  time  of  his  adjudication,  but  he  may  safely 


892  DERIVATIVE  TITLES  (Part  2 

rely  upon  the  presumption  that  the  record  title  Is  the  real  title.  Mem- 
phis Land  &  Timber  Co.  v.  Ford,  58  Fed.  452,  455,  456,  7  C.  C.  A.  304, 
307,  308;  United  States  v.  California,  etc..  Land  Co.,  148  U.  S.  31,  46, 
47,  13  Sup.  Ct.  458,  Z7  L.  Ed.  354;  Kennedy  v.  Northup,  15  111.  148, 
157;  Bowen  v.  Prout,  52  111.  354,  357;  Youngblood  v.  Vastine,  46  Mo. 
239,  242,  2  Am.  Rep.  509;  Powers  v.  McFerran,  2  Serg.  &  R.  (Pa.)  44, 
47;  Earle  v.  Fiske,  103  Mass.  491,  494.29 


MOORE  v.  BENNETT. 

(Court  of  Chancery,  1678.    2  Ch.  246.) 

A.  makes  a  conveyance  to  B.  with  power  of  revocation  by  will,  and 
limits  other  uses  if  A.  dispose  to  a  purchaser  by  the  will :  another 
purchaser  subsequent  is  intended  to  have  notice  of  the  will  as  well 
as  of  the  power  to  revoke,  and  this  is  in  law  a  notice ;  and  so  it  is  in 
all  cases  where  the  purchaser  cannot  make  out  a  title  but  by  a  deed, 
which  leads  him  to  another  fact,  the  purchaser  shall  not  be  a  purchaser 
without  notice  of  that  fact,  but  shall  be  presumed  cognisant  thereof; 
for  it  is  crassa  negligentia,  that  he  sought  not  after  it. 

29  The  balance  of  the  opinion,  relating  to  other  matters,  is  omitted. 

In  Fitzgerald  v.  I.ibby,  142  Mass.  2,3.5,  7  N.  E.  917  (1SS6),  there  was  a  mort- 
gage of  land  descTibed  as  "the  land  by  me  owned"  in  a  certain  designated  local- 
ity, "for  boundaries  and  description  reference  is  made  to  deeds  to  me,  recorded 
in  said  registry."  In  fact  the  mortgagor  had  already  conveyed  a  portion  of  the 
lands  covered  by  the  above  description,  but  the  deed  had  not  been  recorded  at 
the  time  the  mortgage  was  given  and  recorded,  and  the  mortgagee  had  no 
knowledge  of  such  deed.  Held,  that  such  previously  conveyed  portion  did  not 
pass  by  the  mortgage,  under  the  recording  act.  But  compare  Dow  v.  Whitney. 
147  Mass.  1,  16  X.  E.  722  (ISSS),  where  the  conveyance  was  of  "all  my  interest" 
in  a  specilically  described  tract  of  land,  "except  such  portions  thereof  as  I 
have  heretofore  sold."  The  question  was  whether  such  deed  placed  the  grantee 
therein  in  position  to  give  a  clear  title  as  against  possible  prior  unrecorded 
deeds.  The  court  said :  "A  deed  of  'all  the  right,  title,  and  interest,'  or  of  'all 
the  interest,'  of  the  grantor  in  a  lot  of  land,  conveys  the  same  title  as  a  deed 
of  the  land.  It  is  the  policy  of  our  laws  that  a  purchaser  of  land,  by  examin- 
ing the  registry  of  deeds,  may  ascertain  the  title  of  his  gi'antor.  If  there  is 
no  recorded  deed,  he  has  the  right  to  assume  that  the  record  title  is  the  true 
title.  The  law  has  established  the  rule,  for  the  protection  of  creditors  and  pur- 
chasers, that  an  unrecorded  deed,  if  unlvnown  to  them,  is  as  to  them  a  mere 
nullity.  The  reasons  lor  the  rule  apply  with  equal  force  in  the  case  of  a  deed 
of  the  grantor's  right,  title,  and  interest,  as  in  that  of  a  deed  of  tlie  land.  We 
are  of  opinion,  therefore,  that  the  deed  of  Stephen  Dow  conveyed  to  his  grantee 
a  title  which  is  good  against  any  prior  deed,  if  unrecorded.  To  hold  otherwise 
would  defeat  the  purpose  of  the  registration  laws,  and  create  confusion  in  the 
titles  to  land." 


Ch.  8)  PRIORITIES  893 

BAKER  V.  MATHER. 

(Supreme  Court  of  Michigan,  1872.     25  Mich.  51.) 

Appeals  in  Chancery  from  Ionia  Circuit. 

Estiier  E.  Baker  filed  her  bill  against  Amos  R.  Mather,  Dennis  H. 
Burns,  Horace  Roatch,  and  Henry  W.  King  to  foreclose  a  mortgage 
made  to  her  by  Mather  and  Burns,  dated  January  21,  1864,  but  which 
was  not  recorded  until  March  3,  1869.  Roatch  and  King  were  made 
defendants  as  subsequent  purchasers  or  incumbrancers.  King  alone  an- 
swered, and  the  bill  was  taken  as  confessed  by  the  other  defendants., 
Subsequently  Henry  W.  King  filed  his  bill  against  Horace  Roatch,  Car- 
oline E.  Roatch,  Esther  E.  Baker,  and  Dennis  H.  Burns  to  foreclose 
a  mortgage  made  to  him  by  said  Roatch  and  wife,  dated  February  16, 
1869,  and  recorded  March  1,  1869.  Baker  and  Burns  were  made  de- 
fendants as  subsequent  purchasers  or  incumbrancers.  Baker  alone  an- 
swered, and  the  bill  was  taken  as  confessed  by  the  other  defendants. 

These  two  mortgages  covered  the  same  premises,  and  the  question 
involved  was,  which  should  take  precedence.  The  two  cases  were  heard 
together,  and  the  same  proofs  used  on  the  hearing  of  both.  From  tlie 
proofs  it  appeared  that  the  Baker  mortgage  was  a  purchase-price  mort- 
gage, given  on  the  sale  of  the  premises  by  Esther  E.  Baker  to  Burns 
and  Mather ;  that  said  Burns  and  his  wife  subsequently  conveyed  their 
interest  in  the  premises,  subject  to  said  mortgage,  to  said  Mather,  who 
afterwards  conveyed  the  same,  subject  to  said  mortgage  (which  was 
expressly  referred  to  in,  and  excepted  from,  the  covenant  of  warranty 
in  the  conveyance),  to  Roatch ;  and  that  the  latter,  with  his  wife,  after- 
wards executed  the  King  mortgage.  On  the  hearing.  King's  bill  was 
dismissed  as  to  Esther  E.  Baker;  and  decree  was  entered  in  tlie  suit 
brought  by  the  latter,  declaring  her  mortgage  a  prior  lien  on  the  prem- 
ises to  the  King  mortgage.  King  brings  both  causes  to  this  court  by 
appeal,  where  the  two  are  heard  together. 

Per  Curiam,  The  question  in  these  cases  is  one  of  priority  between 
two  mortgages.  The  second  mortgage  was  recorded  first,  and  there 
is  no  evidence  that  the  mortgagee  therein  had  actual  notice  of  the  ex- 
istence of  the  prior  mortgage  when  he  took  his.  It  appears,  however, 
that  the  deed,  under  which  the  mortgagor  held  the  land,  expressly  re- 
ferred to  this  prior  mortgage,  and  made  his  title  subject  to  it.  The 
deed  was  not  recorded,  but  this  is  an  immaterial  circumstance.  Every- 
body taking  a  conveyance  of,  or  a  lien  upon,  land,  takes  it  with  con- 
structive notice  of  whatever  appears  in  the  conveyances  which  con- 
stitute his  chain  of  title.    Decrees  below  affirmed.^" 

SOT.  sold  and  conveyed  land  to  D.,  the  deed  containing  the  following:  "The 
party  of  the  first  part  (tlie  vendor),  for  and  in  consideration  of  the  sum  of 
JJiTOO,  to  be  paid  on  or  before  the  lirst  day  of  July,  1872,  by  the  party  of  the 
second  part."  D.  took  possession,  and,  in  1874,  without  having  paid  T.  in  full, 
conveyed  the  premises  to  H.,  wlao  subsequently  sold  to  M.     H.  and  M.  had  no 


S94  DERIVATIVE  TITLES  (Part  2 

PATMAN  V.  HARLAND. 

(Chancery  Division,  ISSl.     17  Ch.  D.  353.) 

Motion. 

By  an  indenture  dated  the  25tli  of  October,  1876,  the  plaintiff  con- 
veyed to  one  Herve  two  freehold  plots  of  land,  being  parts  of  a  build- 
ing estate  at  Wimbledon,  subject,  nevertheless,  to  the  restrictions  and 
obligations  as  to  building  and  other  matters  contained  in  an  indenture 
of  mutual  covenants,  also  dated  the  25th  of  October,  1876,  executed 
by  the  plaintiff  and  Herve,  and  the  purchasers  of  other  building  plots, 
part  of  the  same  estate.  One  of  the  covenants  contained  in  the  latter 
deed  provided  that  on  the  several  plots  private  dwelling-houses  only 
should  be  erected. 

By  an  indenture  dated  the  18th  of  July,  1878,  Herve  conveyed  the 
same  two  plots  of  land  to  the  defendant  Harland,  subject  to  the  same 
restrictions  and  obligations  as  to  building  by  reference  to  the  deed 
of  mutual  covenants,  as  were  contained  in  the  conveyance  to  Herve. 

The  defendant  Harland  having  erected  a  dwelling-house  on  the  prop- 
erty, by  an  indenture  dated  the  29th  of  March,  1881,  demised  it  to 
the  defendant  Louisa  Bennett  for  the  term  of  seven  years,  for  the 
purposes  of  an  "Art  College,"  and  the  lease  contained  a  proviso  that 
the  defendant  Bennett,  her  executors,  administrators,  or  assigns,  should 
be  at  liberty  to  erect  in  the  garden  belonging  to  the  premises  a  studio, 
with  necessary  rooms  connected  therewith,  of  corrugated  iron  on  a 
brick  foundation,  and  a  covenant  by  the  lessee  not  to  carry  on  any 
trade,  business,  or  employment,  on  the  premises,  without  the  consent 
in  writing  of  the  lessor,  but  to  use  the  premises  as  a  private  dwelling- 
house  only,  with  a  proviso,  however,  that  the  user  of  the  premises 
for  the  purpose  of  a  school  for  instruction  in  art  or  otherwise  should 
not  be  deemed  a  breach  of  any  covenant  in  the  lease. 

Neither  the  defendant  Bennett  nor  her  solicitor  was  informed  or  was 
aware  before  the  execution  of  the  lease,  nor  till  shortly  before  tlie  is- 
suing of  the  writ  in  the  action,  that  there  was  any  restrictive  covenant 
affecting  the  land,  and  she  had  proceeded  to  erect  the  studio  which  was 
nearly  completed. 

This  was  a  motion  for  an  injunction  to  restrain  the  defendants  from 
erecting,  or  continuing  to  erect,  or  permitting  any  building  or  build- 
ings, other  than  private  dwelling-houses,  to  remain  on  the  land,  and 
in  particular,  the  building  then  in  the  course  of  erection. 

Jessel,  M.  R.  I  must  say  that  on  the  point  of  laAV  I  have  a  very 
clear  opinion,  and  not  the  less  so  because  there  are  dicta  in  the  books 
which  at  first  sight  appear  to  lead  to  a  different  conclusion.     I  say 

actual  knowlodse  of  any  claim  against  the  land  by  T.  In  an  action  by  T.  to 
siil).j('ct  the  land  to  the  payment  of  the  unpaid  purchase  price,  H.  and  M.  claim- 
ed to  be  protected  as  purchasers  without  notice.  Deason  v.  Taylor,  53  MisSr 
(;97  (1876). 


Ch.  8)  PRIORITIES  895 

at  first  sight,  because,  when  carefully  examined,  they  do  not  bear  out 
the  argument  which  has  been  supposed  to  be  fortified  by,  them. 

The  first  question  I  have  to  consider  is  the  notice  which  a  man  who 
takes  a  lease  has  of  his  lessor's  title.  It  has  been  settled  for  more  than 
a  century  that  he  has  constructive  notice  of  his  lessor's  title.  Lord 
Eldon  treated  it  as  settled  law.  That  means  this,  that  the  man  \y\^ 
takes  a  lease  is  in  a  similar  position  as  regards  constructive  notice  as 
a  man  who  buys.  There  could  not  be  any  reason  for  any  distinction 
between  purchasing  a  fee  simple  and  taking  a  lease  for  10,000  years. 
If  a  man  who  purchases  a  fee  simple  is  bound  to  look  into  tlie  title 
in  a  regular  way,  so  is  a  man  who  takes  a  lease  for  10,000  years,  or 
1,000  years,  or  for  100  years,  or  any  lease  at  all,  bound  to  make  rea- 
sonable inquiry  into  his  lessor's  title.  Well,  what  is  reasonable  in- 
quiry ?  It  has  been  held  that  he  is  to  require  the  usual  title,  whatever 
the  usual  title  may  be. 

In  this  case  the  lessor's  title  began  in  1878,  and  if  the  lessee  had 
only  asked  to  see  the  conveyance  to  the  lessor,  tliat  is  without  going 
back  40  years,  she  would  have  found  that  it  was  subject  to  this  restric- 
tive covenant,  because  the  grantor  in  1878  took  care  to  convey  the 
land,  subject  to  the  covenants,  though  the  covenants  themselves  were 
in  a  separate  deed. 

Now  it  is  not  to  be  supposed  that  I  am  going  to  restrict  the  doctrine 
to  looking  at  the  actual  conveyance — not  at  all — because  that  would  be 
to  destroy  it  altogether.  If  the  lessor  had  a  conveyance  made  to  him 
the  day  before  that  would  not  do,  the  lessee  must  ask  for  the  convey- 
ance to  him  and  a  fair  and  reasonable  deduction  of  title.  In  this  case, 
as  I  said  before,  tlie  actual  conveyance  refers  to  this  covenant,  but  if 
it  had  not  shewn  it,  I  should  have  come  to  the  same  conclusion, 
as  the  conveyance  of  1876  referred  to  it,  and  that  must  have  appeared 
on  any  investigation  of  title. 

The  result,  tlierefore,  is,  the  lessee  had  constructive  notice.  Now  it 
has  been  argued  that  if  the  lessee,  having  this  constructive  notice,  was 
told  by  the  lessor  that  there  was  no  restrictive  covenant,  that  repre- 
sentation would  in  equity  do  away  with  the  effect  of  constructive  no- 
tice. I  entirely  dissent  from  that  proposition.  Constructive  notice  of 
a  deed  is  constructive  notice  of  its  contents,  subject  to  what  I  am  go- 
ing to  say  presently.  If,  therefore,  you  have  notice  of  a  deed  relat- 
ing to  the  title,  and  forming  a  part  of  the  chain  of  title,  you  have  no- 
tice of  the  contents  of  that  deed,  and  it  is  no  excuse  for  not  asking  to 
look  at  it  to  say  you  were  told  that  the  deed  contained  nothing  which 
it  was  necessary  for  you  to  look  at,  otherwise  in  every  case  you  might 
be  satisfied  with  a  statement  of  the  contents  of  a  deed  without  going 
to  look  at  it.  Of  course  there  may  be  cases  where  the  deed  cannot 
be  got  at,  or,  for  some  other  reason,  where,  with  the  exercise  of  all  the 
prudence  in  the  world,  you  cannot  see  it,  and  then  there  may  be  no 
constructive  notice  affecting  tlie  title,  but  that  is  another  question. 
Where  you  know  of  a  deed  it  is  no  answer  to  be  told  that  it  does  not 


896  DERIVATIVE  TITLES  (Part  2 

prejudicially  affect  the  title,  as  if  it  does  affect  the  title  you  are  bound 
by  its  contents. 

There  is  a  class  of  cases,  of  which  I  think  Jones  v.  Smith,  1  Hare, 
43,  1  Ph.  244,  is  tlie  most  notorious,  where  the  purchaser  was  told  of 
a  deed  which  might  or  might  not  affect  the  title,  and  was  told  at  the 
same  time  that  it  did  not  affect  the  title.  Supposing  you  are  buying 
land  of  a  married  man,  as  in  Jones  v.  Smith,  1  Hare,  43,  1  Ph.  244, 
and  you  are  told  at  the  same  time  that  there  is  a  marriage  settlement, 
but  the  deed  does  not  affect  the  land  in  question,  you  have  no  con- 
structive notice  of  its  contents,  because  although  you  know  there  is 
a  settlement  you  are  told  it  does  not  affect  the  land.  If  every  mar- 
riage settlement  necessarily  affected  all  a  man's  land  then  you  would 
have  constructive  notice,  but  as  a  settlement  may  not  relate  to  his 
land  at  all,  or  only  to  some  other  portions  of  it,  the  mere  fact  of  your 
having  heard  of  a  settlement  does  not  give  you  constructive  notice  of 
its  contents,  if  you  are  told  at  the  same  time  it  dtDcs  not  affect  the 
land.  I  take  it,  under  the  modern  practice,  you  are  not  bound  to  in- 
quire, because  the  abstract  furnished  you  is  an  abstract  of  every  docu- 
ment affecting  the  land,  and  although  you  have  been  told  that  tlie  man 
made  a  marriage  settlement,  you  are  not  entitled  to  assume  that  the 
solicitor  suppressed  improperly  the  deed  of  settlement.  I  take  it,  if 
you  asked  for  it,  he  might  say,  "it  has  nothing  to  do  with  you."  But 
that  line  of  cases  has  no  bearing  at  all  on  a  case  where  you  know  the 
deed  does  affect  the  land,  and  the  question  as  to  the  extent  to  which 
it  does  affect  the  land  is  to  be  ascertained  only  by  looking  at  the  deed 
itself.  Therefore  you  have  no  right  to  rely  on  the  statement  of  some- 
body else  that  the  deed  which  you  can  look  at  does  not  contain  some- 
thing which  it  does  in  fact  contain. 

I  have  said  so  much  on  this  point  because  there  is  no  doubt  an  ob- 
servation which  was  let  fall  by  Lord  Justice  Turner  in  Wilson  v.  Hart, 
Law  Rep.  1  Ch.  463,  and  which  does  to  some  extent  countenance  the 
contrary  doctrine ;  but  as  regards  the  case  of  Carter  v.  Williams,  Law 
Rep.  9  Eq.  678,  before  the  Vice-Chancellor  James,  that,  as  I  read  it, 
entirely  confirms  my  view.  It  is  not  fair  to  criticize  the  words  used 
by  the  Vice-Chancellor,  but  when  you  look  at  the  argument  addressed 
to  him  you  see  the  objection  there  was  that  the  covenant  was  contained 
in  a  collateral  deed,  which  was  not  recited.  In  Coles  v.  Sims,  5  D. 
M.  &  G.  1,  cited  in  Carter  v.  Williams,  the  restrictive  covenant  was 
recited  in  the  conveyance.  The  Vice-Chancellor  in  Carter  v.  Williams, 
Law  Rep.  9  Eq.  678,  says  that  the  covenant  is  contained  in  a  separate 
deed,  but  what  he  means  is  this,  that  the  deed  is  not  noticed  either  by 
way  of  recital  or  by  being  referred  to  in  the  deed  of  conveyance,  so 
that  a  person  might  get  a  complete  chain  of  title  without  any  notice 
of  that  deed.  That  is  what  he  means,  and  that  being  so,  of  course  if 
the  tenant  had  asked  for  his  lessor's  title,  and  got  it,  he  would  not 
necessarily  have  got  that  information.  The  solicitor  ought  no  doubt  to 
have  put  it  in  the  abstract  if  he  knew  of  it,  but  he  would  not  neces- 


Ch.  8)  PRIORITIES  897 

sarily  know  of  it.  Then  the  Vice-Chancellor  came  to  the  conclusion 
that  there  being  no  evidence  of  anything  to  bring  home  to  the  tenant 
actual  knowledge  or  notice  of  the  restrictive  covenant  he  could  not 
hold  he  had  constructive  notice  of  it.  Therefore,  it  appears  to  me, 
that  case  rather  follows  out  the  doctrine  of  Jones  v.  Smith,  1  Hare, 
43,  1  Ph.  244,  and  by  no  means  affects  the  other  cases  cited  where  the 
document  in  question  affecting  the  title  is  recited  or  otherwise  noticed 
in  the  title-deeds.  In  Carter  v.  Williams,  any  one  could  have  accepted 
the  title  without  being  aware  of  the  document  containing  the  cove- 
nant. 

I  am  therefore  of  opinion  that  the  constructive  notice  which  the 
lessee  in  this  case  obtained,  would  not  have  been  done  away  with  by 
the  most  express  statement  obtained  from  the  lessor  that  there  was  no 
restrictive  covenant.  I  must  say  that  I  am  not  satisfied  in  this  case 
that  there  was  any  such  representation.  What  appears  to  have  oc- 
curred was  this,  the  lessor  did  not  of  course  shew  his  title,  but  he  was 
aware  that  the  lessee  intended  to  use  this  property  in  the  way  she  at- 
tempts to  use  it,  and  there  was  a  proviso  which  excepted  such  user 
from  the  covenant  in  the  lease,  and  consequently  a  person  reading 
that  lease  would  have  assumed,  and  fairly  assumed,  that  she  had  a 
right  to  use  it  in  the  way  mentioned  in  the  exception  from  the  cove- 
nant. In  that  way  there  was  a  representation — an  indirect  representa- 
tion— and  there  were  in  addition  to  that  some  further  words  in  the 
lease  which  tended  in  the  same  direction.  Therefore  I  think  there  was 
sufficient  to  put  the  lessee  off  her  guard,  if  I  may  say  so,  if  it  were  not 
that  she  had  constructive  notice,  the  effect  of  which  no  representation 
could  have  destroyed. 

I  wish  to  notice  one  other  point ;  it  is  said  that  the  new  law  as  to 
the  extent  of  title  to  be  required  by  purchasers  alters  the  rule.  I 
think  it  does  not:  what  the  Vendor  and  Purchaser  Act  does  is  this, 
in  order  that  a  lessee  may  obtain  his  lessor's  title,  it  makes  an  express 
stipulation  to  that  effect  necessary,  whereas  formerly  the  rule  was 
the  other  way,  that  without  express  stipulation  the  lessee  had  a  right 
to  the  title.  Formerly,  if  the  lessee  had  expressly  stipulated  not  to 
look  into  his  lessor's  title,  it  would  not  have  affected  the  constructive 
notice.  This  is  the  meaning  of  the  doctrine;  you  may  bargain  to 
shut  your  eyes,  but  if  you  do  wilfully  shut  your  eyes,  whether  as  a  bar- 
gain or  not,  you  must  be  liable  to  the  consequences  of  shutting  your 
eyes.  If,  therefore,  the  lessee  had  formerly  expressly  bargained  to 
take  a  lease  without  looking  into  the  lessor's  title,  the  lessee  would 
have  been  bound  by  constructive  notice,  and  now  if  the  lessee  says 
nothing  it  is  exactly  the  same  as  if  formerly  he  had  bargained  ex- 
pressly not  to  look  into  the  lessor's  title.  Therefore,  as  he  may  re- 
fuse to  take  a  lease  without  looking  into  the  title  (in  some  cases,  es- 
pecially in  case  of  building  leases,  lessees  do  look  into  the  title,  in 
otlier  cases  they  do  not),  it  appears  to  me  that  the  law  is  uxialtered. 
Aig.Pbop. — 57 


898  DERIVATIVE  TITLES  (Part  2 

and  tfiat  the  doctrine  of  Tulk  v.  Moxhay,  2  Ph.  774,  and  that  Hne  of 
cases  applies. 

Then  the  lessee  being  bound  by  the  covenant,  the  only  remaining 
question  is,  What  is  the  covenant,  and  has  there  been  a  breach  of  it? 
The  covenant  is  not  well  worded,  and  will  not  perhaps  carry  out  the 
full  intention  of  the  covenantee,  but  it  is  a  covenant  that  they  "shall 
erect  private  dwelling-houses  only"  on  the  piece  of  land.  The  lessee 
is  building  something  which  it  would  be  rather  absurd  for  any  one  to 
describe  as  a  private  dwelling-house,  and  I  am  glad  to  see  that  nobody 
does  so  describe  it ;  it  is  described  in  the  affidavit  as  a  corrugated  iron 
building,  not  in  any  way  connected  with  the  dwelling-house,  or  so  sit- 
uated at  present  as  possibly  to  be  used  for  a  private  dwelling-house. 
The  lessee  says  it  has  been  built  as  an  addition  to  the  house  which 
is  intended  to  be  used  as  an  art  studio  for  ladies.  There  is  no  ques- 
tion that  it  has  been  erected  for  that  purpose,  and  not  for  a  private 
dwelling-house.  It  has  been  argued  that  this  building,  being  within 
the  same  curtilage  as  the  house,  must  be  treated  as  appurtenant  to 
the  dwelling-house,  and  forming  part  of  it,  in  the  same  way  as  a  bil- 
liard-room or  smoking-room  might  be.  But  this  is  a  thing  of  a  totally 
different  character.  It  could  not  be  suggested  that  having  built  a 
private  dwelling-house  with  a  garden,  if  you  then  built  a  church  or 
chapel  at  the  other  end  of  the  garden,  that  church  or  chapel  would 
be  treated  as  a  portion  of  the  private  dwelling-house,  merely  because 
it  happened  to  be  within  the  same  curtilage — it  would  be  a  separate 
erection  and  not  a  private  dwelling-house.  It  is  in  my  opinion  a  clear 
breach  of  the  covenant,  and  so  I  shall  Vestrain  the  further  proceed- 
ing with  its  construction,  which  is  all  I  think  it  right  to  order  now, 
though  if  it  is  not  taken  away  altogether  before  the  trial  of  the  action 
I  may  order  it  to  be  taken  away  then.  The  lessee  has,  I  think,  a  right 
to  convert  the  building  if  she  can  into  a  fair  and  reasonable  adjunct 
to  the  private  dwelling-house;  that  is  the  reason  I  do  not  now  grant 
the  mandatory  injunction  asked  for.  I  shall  not  grant  any  injunction 
against  the  defendant  Harland.  and  his  costs  and  the  costs  of  ail  otlier 
parties  will  be  costs  in  the  action. 


GALLEY  V.  WARD. 

(Supreme  Court  of  New  Hampshii-e,  ISSO.    CO  N.  II.  3.31.) 

Bill  in  equity,  to  set  aside  the  levy  of  an  execution.  Facts  found 
by  a  referee.  May  13,  1871,  Jane  Smith,  wife  of  Robert  Smith,  be- 
ing seized  in  her  own  right  of  a  tract  of  land  called  the  "Little  Lot," 
sold  it  to  the  plaintiff  for  $800,  and  intended  and  believed  that  she  did 
then  convey  it  in  fee  simple  "to  him.  But  the  deed,  by  mistake  of  the 
scrivener,  was  executed  by  her  husband,  in  which  she  merely  released 
dower  and  homestead.  This  was  not  recorded  till  November  12,  1875. 
September  18,  1878,  Jane  and  Robert  executed  and  delivered  to  the 


Ch.  8)  PRIORITIES  899 

plaintiff  a  deed  of  the  lot,  for  the  purpose  of  ratifying  and  confirming 
the  latter's  title,  and  of  fulfilling  all  that  they  supposed  they  did  do 
by  their  former  deed.  The  plaintiff  entered  into  possession  of  the 
lot  upon  receiving  the  first  deed,  and  has  remained  in  the  open,  visible, 
exclusive,  and  notorious  possession  of  it  ever  since,  cultivating  the 
land,  cutting  the  grass,  pasturing  his  cattle  therein,  cutting  off  the 
wood,  rebuilding  the  walls  and  fences,  and  tearing  down  the  buildings, 
which  were  old  and  dilapidated,  and  from  the  best  of  the  timber  erect- 
ing a  coopers'  shop. 

The  defendant  Ward,  in  1876,  without  any  consideration,  assigned 
to  the  defendant  Morris  a  claim  against  Jane  Smith;  Morris,  in  April, 
1876,  brought  suit  on  this  claim,  and  obtained  an  execution,  which 
was  levied  on  the  "Little  Lot."  Before  bringing  the  suit,  Morris  made 
inquiries  at  the  registry  of  deeds  to  ascertain  if  Jane  Smith  had  con- 
veyed this  lot,  and  was  informed  that  she  had  not.  The  deed  of  May 
13,  1871,  was  indexed  "Smith  Robert  to  Galley  William."  Before 
the  attachment,  Morris  had  no  knowledge  or  suspicion  that  Jane  had 
sold  the  lot,  and  it  did  not  appear  when  he  first  learned  of  it.  Ward 
and  Morris  both  live  in  Boston,  Mass. 

Foster,  J.  At  the  time  of  Morris's  attachment  and  levy,  the  plain- 
tiff held  the  equitable  title  to  the  "Little  lot"  by  virtue  of  the  agree- 
ment made  with  Jane  Smith  in  1871,  under  which  he  had  paid  the 
full  consideration  for  the  property,  and  had  entered  into  its  occupation. 
He  was  entitled  to  a  decree  for  a  specific  performance  of  this  agree- 
ment, and  to  such  a  conveyance  as  he  received  September  18,   1878. 

2  Story,  Eq.  §  761;  Scoby  v.  Blanchard,  3  N.  H.  170,  177;  Hadduck 
v.  Wilmarth,  5  N.  H.  181,  189,  20  Am.  Dec.  570;  Chartier  v.  Mar- 
shall, 51  N.  H.  400;  Newton  v.  Swazey,  8  N.  H.  9;  Cutting  v.  Pike, 
21  N.  H.  347;  Kidder  v.  Barr,  35  N.  H.  235,  254;  Doe  v.  Doe,  Z7  N. 
.H.  268 ;   Ewins  v.  Gordon,  49  N.  H.  444. 

It  is  not  claimed  that  Morris  had  any  actual  knowledge  of  the  plain- 
tiff's title.  He  merely  knew  as  a  fact  that  the  legal  title  appeared  by 
the  record  to  be  in  Jane  Smith.  And  if  the  plaintift''s  title  is  to  prevail 
in  this  suit,  it  must  be  on  the  ground  of  constructive  notice.  It  is 
substantially  admitted  in  the  brief  for  Morris,  and  is  undoubtedly 
the  law  in  this  state,  that  a  purchaser  of  land,  knowing  that  a  third 
person  is  in  the  open,  visible,  and  notorious  occupation  of  it, — an  oc- 
cupation inconsistent  with  the  idea  that  he  is  a  tenant, — is  chargeable 
with  notice  of  such  facts  in  reference  to  the  latter's  title,  whether 
legal  or  equitable,  as  he  would  have  learned  upon  reasonable  inquiry. 
Colby  v.  Kenniston,  4  N.  H.  262;  Hadduck  v.  Wilmarth,  5  N.  H. 
181,  20  Am.  Dec.  570;  Warren  v.  Swett,  31  N.  H.  332;  Patten  v. 
Moore,  32  N.  H.  383 ;  Jones  v.  Smith,  1  Hare,  43 ;   Tardy  v.  Morgan. 

3  McLean,  358,  Fed.  Cas.  No.  13,752;  Landes  v.  Brant,  10  How.  348. 
375,  13  L.  Ed.  449;  Ferrin  v.  Errol,  59  N.  H.  234;  Cooper  v.  New- 
man, 45  N.  H.  339 ;  Nute  v.  Nute,  41  N.  H.  60;  Braman  v.  Wilkinson, 
3  Barb.  (N.  Y.)  151;   Bank  v.  Flagg,  3  Barb.  Ch.  (N.  Y.)  316;   Doo- 


900  DERIVATIVE  TITLES  (Part  2 

little  V.  Cook,  75  111.  354;  Losey  v.  Simpson,  11  N.  J.  Eq.  246;  Big. 
Fr.  288 ;  1  Story,  Eq.  §  399,  note  4 ;  Hill.  Vend.  408 ;  Jones,  Mort. 
600.  And  the  nature  of  the  plaintiff's  possession  in  this  case  was 
sufficient  to  put  a  purchaser  having  knowledge  of  the  facts  on  inquiry 
as  to  the  plaintiff's  title. 

But  it  is  contended  that  Morris  did  not  know  of  the  plaintiff's  pos- 
session of  the  land,  and  that  therefore  the  doctrine  of  constructive 
notice  cannot  be  applied  to  him.  If  he  had  known  it,  on  tlie  author-* 
ities  above  cited  he  could  have  gained  no  title  against  the  plaintiff  by 
his  attachment  and  levy.  Is  his  ignorance  sufficient  excuse  ?  When  a 
grantee  records  his  deed,  a  subsequent  purchaser  is  chargeable  with 
constructive  notice  of  its  contents.  It  is  wholly  immaterial  whether 
he  has  seen  the  deed,  or  has  any  knowledge  of  its  existence.  It  h,  as 
sometimes  expressed,  a  conclusive  presumption  of  law  that  he  had 
notice  of  the  grantee's  deed.  Malone,  Real  Prop.  Trials,  427;  Mor- 
rison V.  Kelly,  22  111.  610,  74  Am.  Dec.  169.  On  the  same  ground  it  is 
at  least  a  prima  facie  presumption,  that  when  there  is  such  a  posses- 
sion by  a  third  party  as  would  charge  a  purchaser  who  knew  of  that 
possession  with  knowledge  of  an  adverse  title,  a  purchaser  ignorant 
of  that  possession  without  excuse  would  be  equally  chargeable.  And 
this  doctrine,  in  both  cases,  rests  on  the  ground  of  fraud  or  culpable 
negligence.  As  it  is  a  part  of  a  purchaser's  duty  to  examine  the  rec- 
ord, to  inform  himself  as  to  the  legal  title  he  expects  to  acquire,  a 
failure  to  attend  to  that  duty  would  amount  to  negligence  on  his  part, 
and  would  be  a  fraud  on  a  previous  purchaser  under  a  recorded  deed, 
if  he  could,  by  proving  his  ignorance,  acquire  a  title.  By  the  same 
mode  of  reasoning,  if  he  is  wilfully  ignorant  of  such  facts  of  notorious 
occupation  by  a  stranger  as  would  put  a  purchaser  cognizant  of  those 
facts  on  his  guard  against  some  unrecorded  deed  or  equitable  claim, 
his  want  of  knowledge  is  due  to  his  own  laches  and  failure  to  attend 
to  an  apparent  duty.  In  Hughes  v.  U.  S.,  4  Wall.  232,  18  L.  Ed.  303, 
Field,  J.,  says  that  if  a  purchaser  neglects  to  make  inquiry  as  to  the 
possession,  "he  is  not  entitled  to  any  greater  consideration  than  if  he 
had  made  it  and  ascertained  the  actual  facts  of  the  case."  See,  also, 
Edwards  v.  Thompson,  71  N.  C.  177;  McKinzie  v.  Perrill,  15  Ohio 
St.  162;  Bailey  v.  Richardson,  9  Hare,  734;  Gooding  v.  Riley,  50  N. 
H.  400,  403^05 ;  Strong  v.  Shea,  83  111.  575 ;  Hommel  v.  Devinney, 
39  Mich.  522;  Patton  v.  Hollidaysburg,  40  Pa.  206;  Perkins  v. 
Swank,  43  Miss.  349.  Nor  is  there  any  distinction  in  this  respect  be- 
tween a  purchaser  and  a  creditor.  A  creditor  is  bound  by  constructive 
notice  of  the  contents  of  a  recorded  deed,  as  well  as  a  purchaser,  and 
there  seems  to  be  no  reason  why  they  should  not  both  stand  on  the 
same  ground  with  reference  to  an  equitable  title  in  a  third  party,  in  a 
case  like  the  present.  Priest  v.  Rice,  1  Pick.  (Mass.)  164,  11  Am. 
Dec.  156;  Flynt  v.  Arnold,  2  Mete.  (Mass.)  619;  Farnsworth  v. 
Childs,  4  Mass.  637,  3  Am.  Dec.  249 ;  Scripture  v.  Soapstone  Co.,  50 
N.  H.  571. 


Gh.  8)  PRIORITIES  ,  901 

The  defendant  Morris  had  no  knowledge  that  the  plaintiff  was  in 
possession  of  the  land  in  question,  but,  so  far  as  the  plaintiff  or  any- 
body else  was  concerned,  he  was  at  liberty  to  examine  the  apparent 
condition  of  the  premises.  He  was  not  deceived  by  any  misrepre- 
sentations or  concealments  of  the  plaintiff.  He  relied  on  his  own  judg- 
ment, and  neglected  an  apparent  duty.  Like  a  purchaser  having 
knowledge  of  facts  sufficient  to  put  him  on  his  guard,  he  must  be  held 
chargeable  with  what  he  would  have  learned  upon  reasonable  inquiry 
as  to  the  plaintiff's  right  of  possession.  And  it  appears  from  the  case 
that  he  would  have  learned  of  the  plaintiff's  equitable  title.  His  title 
therefore  cannot  prevail  in  this  suit. 

It  is  unnecessary,  in  the  view  we  have  taken  of  the  case,  to  con- 
sider the  further  question,  whether  the  want  of  consideration  for  the 
assignment  of  the  claim  to  Morris  by  Ward  would  prevent  the  for- 
mer from  acquiring  a  title  against  the  plaintiff.  Decree  according  to 
the  prayer  of  the  bill.^^ 

31  The  owner  of  lands  conveyed  same  to  A.,  B.,  and  C,  the  deed  being  duly 
recorded.  A.  took  possession,  and  shortly  thereafter  acquired  deeds  from  B. 
and  C.  conveying  their  interests  to  him.  These  deeds  were  not  recorded.  B. 
and  C.  later  made  a  deed  of  their  undivided  interests  in  the  same  premises  to 
D.,  who  paid  value  therefor  with  no  knowledge  of  the  unrecorded  deeds  to  A. 
Should  D.  be  charged  with  notice  by  reason  of  A.'s  possession?  See  Dutton  v. 
McReynoUls,  31  Minn.  66,  16  N.  W.  468  (lS8:ii;  Farmers'  &  Merchants'  Nat. 
Bank  v.  Wallace,  45  Ohio,  St.  152,  12  N.  E.  439  (1SS7). 

Lands  were  conveyed  to  A.,  the  deed  being  properly  recorded.  A.  later  con- 
veyed them  to  her  husband,  and  that  deed  was  not  recorded.  Still  later,  and 
while  A.  and  husband  were  living  upon  the  premises,  A.  conveyed  to  B.,  who 
paid  value  and  had  no  knowledge  of  the  conveyance  from  A.  to  her  husband. 
Should  B.  be  charged  with  notice  of  the  husband's  interest?  See  Westerfield 
V.  Kimmer,  82  Ind.  365  (1882) ;  Atwood  v.  Bearss,  47  Mich.  72,  10  N.  W.  112 
(1881). 

A.,  a  married  woman,  having  purchased  certain  lands,  had  a  conveyance  of 
same  made  to  B.  to  hold  on  her  behalf.  B.  later  conveyed  the  premises  to  A., 
but  the  deed  was  never  recorded.  After  the  death  of  B.,  his  heirs  executed 
a  deed  of  these  premises  to  C,  who  paid  value  therefor  without  knowledge  of 
the  rights  of  A.  Since  the  time  of  the  first  conveyance  mentioned  to  B.,  A. 
and  her  husband  have  resided  upon  the  premises.  Should  C.  be  charged  with 
notice  of  A.'s  rights?  See  Kirby  v.  Tallmadge.  160  l'.  S.  371).  16  Sup.  Ct.  349, 
40  L.  Ed.  463  (1S96).  See,  also,  Phelan  v.  Brady,  119  N.  Y.  .587,  23  N.  E.  1109, 
8  L.  R.  A.  211  (1890) ;  Boyer  v.  Chandler,  160  111.  394,  43  N.  E.  803,  32  L.  R.  A. 
113  (1896). 

AVhat  would  have  been  the  situation  if,  instead  of  A.  and  her  husband  being 
in  possession,  a  lessee  of  A.  had  been  occupying  the  premises?  See  Hunt  v. 
Luch,  [1902]  1  Ch.  428 ;    Randall  v.  Lingwall,  43  Or.  383,  73  Pae.  1  (1903). 

As  to  whether  possession  by  a  gi'antor  in  a  recorded  deed  is  notice  of  any 
rights  held  by  him,  see  Bloomer  v.  Henderson,  8  Mich.  .395.  77  Am.  Dec.  453 
(1860) ;  Van  Keuren  v.  Central  R.  Co.,  38  N.  J.  Law,  165  (1875) ;  Randall  v. 
Lingwall,  supra;  Groff  v.  State  Bank  of  Minneapoli.s,  50  Minn.  2.34,  52  N.  W. 
651,  36  Am.  St.  Rep.  640  (1892) ;  Illinois  Cent.  R.  Co.  v.  McCullough,  59  111. 
166  (1871). 


902  DERIVATIVE  TITLES  (Part  2 

WILLIAMSON  V.  BROWN. 
(Court  of  Appeals  of  New  York,  1857.     15  N.  Y.  354.) 

The  defendant,  Brown,  was  the  owner  of  fifty  acres  of  land  in 
Hannibal,  Oswego  county,  which,  on  the  4th  of  April,  1851,  he  sold 
and  conveyed  to  one  Jackson  Earl,  taking  back  from  Earl  a  mortgage 
for  $800  of  the  purchase  money,  but  omitting  at  that  time  to  put  his 
mortgage  upon  record. 

On  the  29th  of  October,  1851,  Earl  conveyed  the  land  to  the  plain- 
tiff by  deed,  which  was  duly  recorded  on  the  same  day;  and  on  the 
28th  of  January,  1852,  the  mortgage  from  Earl  to  thfe  defendant  was 
put  upon  record.  In  May  following  the  defendant  commenced  pro- 
ceedings for  the  foreclosure  of  the  mortgage  by  advertisement.  This 
suit  was  commenced  to  restrain  the  defendant  from  proceeding  with 
this  foreclosure,  on  the  ground  that  the  plaintiff  was  protected  by 
the  recording  act  against  the  defendant's  prior  but  unrecorded  mort- 
gage. 

The  cause  was  tried  before  a  referee,  who  reported  that  he  found 
as  matter  of  fact  "that  the  plaintiff  did  not  at  the  time  he  purchased 
the  premises  have  actual  notice  of  the  existence  of  the  mortgage 
mentioned  in  the  pleadings,  given  by  Jackson  Earl  to  the  defendant," 
but  also  found  that  he  had  "sufficient  information,  or  belief  of  the 
existence  of  said  mortgage  to  put  him  upon  inquiry,  before  he  pur- 
chased and  received  his  conveyance  of  the  premises  in  question ;  and 
that  he  pursued  such  inquiry  to  the  extent  of  his  information  and 
belief,  as  to  the  existence  of  the  said  mortgage,  and  did  not  find  that 
such  mortgage  existed,  or  had  been  given." 

Upon  these  facts  the  referee  held  that  the  plaintiff  was  chargeable 
with  notice  of  the  mortgage,  and  dismissed  the  complaint,  and  the 
plaintiff  excepted  to  the  decision.  Judgment  was  entered  for  the 
defendant  upon  the  referee's  report  which,  upon  appeal  to  the  general 
term  of  the  fifth  district,  was  affirmed. 

Selden,  J.  The  referee's  report  is  conclusive  as  to  the  facts.  It 
states,  in  substance,  that  the  plaintiff  had  sufficient  information  to 
put  him  upon  inquiry  as  to  the  defendant's  mortgage;  but  that  after 
making  all  the  inquiry,  which  upon  such  information  it  became  his  duty 
to  make,  he  failed  to  discover  that  any  such  mortgage  existed.  This 
being,  as  I  think,  what  the  referee  intended  to  state,  is  to  be  assumed 
as  the  true  interpretation  of  his  report. 

The  question  in  the  case,  therefore  is,  as  to  the  nature  and  effect 
of  that  kind  of  notice  so  frequently  mentioned  as  notice  sufficient  to 
put  a  party  upon  inquiry.  The  counsel  for  the  plaintiff  contends  that 
while  such  a  notice  may  be  all  that  is  required  in  some  cases  of  equitable 
cognizance,  it  is  not  sufficient  in  cases  arising  under  the  registry  acts, 
to  charge  the  party  claiming  under  a  recorded  title  with  knowledge  of 


Ch.  8)  PRIORITIES  903 

a  prior  unregistered  conveyance.  He  cites  several  authorities  in  sup- 
port of  this  position. 

In  the  case  of  Dey  v.  Dunham,  2  Johns.  Ch.  182,  Chancellor  Kent 
says,  in  regard  to  notice  under  the  registry  act:  "If  notice  that  is  to 
put  a  party  upon  inquiry  be  sufficient  to  break  in  upon  the  policy  and 
the  express  provisions  of  the  act  then  indeed  the  conclusion  would 
be  different;  but  I  do  not  apprehend  that  the  decisions  go  that 
length."  Again,  in  his  commentaries,  speaking  on  the  same  subject, 
he  says :  "Implied  notice  may  be  equally  effectual  with  direct  and  pos- 
itive notice;  but  then  it  must  not  be  that  notice  which  is  barely  suffi- 
cient to  put  a  party  upon  inquiry." 

So  in  Jackson  v.  Van  Valkenburgh,  8  Cow.  260,  Woodworth,  J., 
says:  "If  these  rules  be  apphed  to  the  present  case,  the  notice  was 
defective.  It  may  have  answered  to  put  a  person  on  inquiry,  in 
a  case  where  that  species  of  notice  is  sufficient ;  but  we  have  seen  that 
to  supply  the  place  of  registry,  the  law  proceeds  a  step  further." 

A  reference  to  some  of  the  earlier  decisions  under  the  registry  acts 
of  England,  will  tend,  I  think,  to  explain  these  remarks,  which  were 
probably  suggested  by  those  decisions.  One  of  the  earliest,  if  not 
the  first  of  the  English  recording  acts  was  that  of  7  Anne,  ch.  20. 
That  act  differed  from  our  general  registry  act  in  one  important  re- 
spect. It  did  not,  in  terms  require  that  the  party  to  be  protected  by 
the  act  should  be  a  bona  fide  purchaser.  Its  language  was :  "And  that 
every  such  deed  or  conveyance,  that  shall  at  any  time  after,  &c.,  be 
made  and  executed,  shall  be  adjudged  fraudulent  and  void,  against  any 
subsequent  purchaser  or  mortgagee  for  valuable  consideration,  un- 
less," &c. 

The  English  judges  found  some  difficulty  at  first  in  allowing  any 
equity,  however  strong,  to  control  the  explicit  terms  of  the  statute. 
It  was  soon  seen,  however,  that  adhering  to  the  strict  letter  of  the  act 
would  open  the  door  to  the  grossest  frauds.  Courts  of  equity,  there- 
fore, began,  but  with  great  caution,  to  give  relief  when  the  fraud  was 
palpable.  Hine  v.  Dodd,  2  Atk.  275,  was  a  case  in  which  the  com- 
plainant sought  relief  against  a  mortgage  having  a  preference  under 
the  registry  act,  on  the  ground  that  the  mortgagee  had  notice.  Lord 
Hardwicke  dismissed  the  bill,  but  admitted  that  "apparent  fraud,  or 
clear  and  undoubted  notice  would  be  a  proper  ground  of  relief." 
Again  he  said:  "There  may  possibly  have  been  cases  of  relief  upon 
notice,  divested  of  fraud,  but  then  the  proof  must  be  extremely  clear." 

Jolland  V.  Stainbridge,  3  Ves.  478,  is  another  case  in  which  relief 
was  denied.  The  master  of  the  rolls,  however,  there  says :  "I  must 
admit  now  that  the  registry  is  not  conclusive  evidence,  but  it  is  equally 
clear  that  it  must  be  satisfactorily  proved,  that  the  person  who  registers 
the  subsequent  deed  must  have  known  exactly  the  situation  of  the 
persons  having  the  prior  deed,  and  knowing  that,  registered  in  order  to 
defraud  them  of  that  title." 


904  DERIVATIVE  TITLES  (Part  2 

Chancellor  Kent  refers  to  these  cases  in  Dey  v.  Dunham,  supra, 
and  his  remarks  in  that  case,  as  to  the  effect,  under  the  registry  acts, 
of  notice  sufficient  to  put  a  party  upon  inquiry,  were  evidently  made 
under  the  influence  of  the  language  of  Lord  Hardwicke  and  the  mas- 
ter of  the  rolls  above  quoted. 

But  the  English  courts  have  since  seen,  that  if  they  recognized  any 
equity  founded  upon  notice  to  the  subsequent  purchaser  of  the  prior 
unregistered  conveyance,  it  became  necessarily  a  mere  question  of 
good  faith  on  the  part  of  such  purchaser.  They  now  apply,  therefore, 
the  same  rules  in  regard  to  notice,  to  cases  arising  under  the  registry 
acts,  as  to  all  other  cases. 

It  will  be  sufficient  to  refer  to  one  only  among  the  modern  English 
cases  on  this  subject,  viz.,  Whitbread  v.  Boulnois,  1  You.  &  Coll.  Ex. 
R.  303.  The  plaintiff  was  a  London  brewer,  and  supplied  Jordan,  who 
was  a  publican,  with  beer.  It  was  the  common  practice  with  brewers 
in  London  to  lend  money  to  publicans  whom  they  supplied  with  beer, 
upon  a  deposit  of  their  title  deeds.  Jordan  had  deposited  certain  deeds 
with  the  plaintiff,  pursuant  to  this  custom.  He  afterwards  gave  to  one 
Boulnois,  a  wine  merchant  a  mortgage  upon  the  property  covered  by 
the  deeds  deposited,  which  was  duly  recorded.  Boulnois  had  notice 
of  Jordan's  debt  to  the  plaintiff,  and  of  the  existing  custom  between 
brewers  and  publicans,  but  he  made  no  inquiry  of  tlie  brewers.  The 
suit  was  brought  to  enforce  the  equitable  mortgage  arising  from  the 
deposit.  Baron  Alderson  held  that  the  notice  to  Boulnois  was  suffi- 
cient to  make  it  his  duty  to  inquire  as  to  the  existence  of  the  deposit ; 
that  his  not  doing  so  was  evidence  of  bad  faith;  and  the  plaintiff's 
right,  under  his  equitable  mortgage,  was  sustained.  No  case  could 
show  more  strongly  that  notice  which  puts  the  party  upon  inquiry  is 
sufficient  even  under  the  registry  act. 

The  cases  in  our  own  courts,  since  Dey  v.  Dunham  and  Jackson  v. 
Van  Valkenburgh,  supra,  hold  substantially  the  same  doctrine.  Tuttle 
v.  Jackson,  6  Wend.  213,  21  Am.  Dec.  306;  Jackson  v.  Post,  15  Wend. 
588;  Grimstone  v.  Carter,  3  Paige,  421,  24  Am.  Dec.  230. 

I  can  see  no  foundation  in  reason  for  a  distinction  between  the  evi- 
dent requisite  to  establish  a  want  of  good  faith,  in  a  case  arising  under 
the  recording  act,  and  in  any  other  case ;  and  the  authorities  here  re- 
ferred to  are  sufficient  to  show  that  no  such  distinction  is  recognized, 
at  the  present  day,  by  the  courts.  The  question,  however,  remains, 
whether  this  species  of  notice  is  absolutely  conclusive  upon  the  rights 
of  the  parties.  The  plaintiff's  counsel  contends,  that  knowledge  suffi- 
cient to  put  the  purchaser  upon  inquiry  is  only  presumptive  evidence 
of  actual  notice,  and  may  be  repelled  by  showing  that  the  party  did  in- 
quire with  reasonable  diligence,  but  failed  to  ascertain  the  existence  of 
the  unregistered  conveyance;  while,  on  the  other  hand,  it  is  insisted 
that  notice  which  makes  it  the  duty  of  the  party  to  inquire,  amounts  to 
constructive  notice  of  the  prior  conveyance,  the  law  presuming  that 
due  inquiry  will  necessarily  lead  to  its  discovery. 


Gh.  8)  PRIORITIES  905 

The  counsel  for  the  defendant  cites  several  authorities  in  support 
of  his  position,  and  among  others  the  cases  of  Tuttle  v.  Jackson  and , 
Grimstone  v.  Carter,  supra.  In  the  first  of  these  cases,  Walworth, 
Chancellor,  says :  "If  the  subsequent  purchaser  knows  of  the  unreg- 
istered conveyance,  at  the  time  of  his  purchase,  he  cannot  protect  him- 
self against  that  conveyance ;  and  whatever  is  sufficient  to  make  it  his 
duty  to  inquire  as  to  the  rights  of  others,  is  considered  legal  notice  to 
him  of  those  rights;"  and  in  Grimstone  v.  Carter,  the  same  judge  says: 
"And  if  the  person  claiming  the  prior  equity  is  in  the  actual  possession 
of  the  estate,  and  the  purchaser  has  notice  of  that  fact,  it  is  sufficient 
to  put  him  on  inquiry  as  to  the  actual  rights  of  such  possessor,  and  is 
good  constructive  notice  of  those  rights." 

It  must  be  conceded  that  the  language  used  by  the  learned  Chan- 
cellor in  these  cases,  if  strictly  accurate,  would  go  to  sustain  the  doc- 
trine contended  for  by  the  defendant's  counsel.  Notice  is  of  two  kinds  : 
actual  and  constructive.  Actual  notice  embraces  all  degrees  and  grades 
of  evidence,  from  the  most  direct  and  positive  proof  to  the  slightest, 
circumstance  from  which  a  jury  would  be  warranted  in  inferring  notice. 
It  is  a  mere  question  of  fact,  and  is  open  to  every  species  of  legitimate 
evidence  which  may  tend  to  strengthen  or  impair  the  conclusion.  Con- 
structive notice,  on  the  other  hand,  is  a  legal  inference  from  established 
facts ;  and  like  other  legal  presumptions,  does  not  admit  of  dispute. 
"Constructive  notice,"  says  Judge  Story,  "is  in  its  nature  no  more  than 
evidence  of  notice,  the  presumption  of  which  is  so  violent  that  the  court 
will  not  even  allow  of  its  being  controverted."    Story's  Eq.  Juris.  §  399. 

A  recorded  deed  is  an  instance  of  constructive  notice.  It  is  of  no 
consequence  whether  the  second  purchaser  has  actual  notice  of  the 
prior  deed  or  not.  He  is  bound  to  take,  and  is  presumed  to  have,  the 
requisite  notice.  So,  too,  notice  to  an  agent  is  constructive  notice  to 
the  principal ;  and  it  would  not  in  the  least  avail  the  latter  to  show  that 
the  agent  had  neglected  to  communicate  the  fact.  In  such  cases,  the 
law  imputes  notice  to  the  party  whether  he  has  it  or  not.  Legal  or  im- 
plied notice,  therefore,  is  the  same  as  constructive  notice,  and  cannot 
be  controverted  by  proof. 

But  it  will  be  found,  on  looking  into  the  cases,  that  there  is  much 
want  of  precision  in  the  use  of  these  terms.  They  have  been  not  in- 
frequently applied  to  degrees  of  evidence  barely  sufficient  to  warrant 
a  jury  in  inferring  actual  notice,  and  which  the  slightest  opposing 
proof  would  repel,  instead  of  being  confined  to  those  legal  presump- 
tions of  notice  which  no  proof  can  overthrow.  The  use  of  these  terms 
by  the  chancellor,  therefore,  in  Tuttle  v.  Jackson  and  Grimstone  v. 
Carter,  is  by  no  means  conclusive. 

The  phraseology  uniformly  used,  as  descriptive  of  the  kind  of  notice 
in  question,  "sufficient  to  put  the  party  upon  inquiry,"  would  geem  to 
imply  that  if  the  party  is  faithful  in  making  inquiries,  but  fails  to  dis- 
cover the  conveyance,  he  will  be  protected.  The  import  of  the  termS: 
is,  that  it  becomes  the  duty  of  the  party  to  inquire.     If,  then,  he  per- 


90G  DERIVATIVE  TITLES  (Part  2 

forms  that  duty  is  he  still  to  be  bound,  without  any  actual  notice?  The 
presumption  of  notice  which  arises  from  proof  of  that  degree  of  knowl- 
edge which  will  put  a  party  upon  inquiry  is,  I  apprehend,  not  a  pre- 
sumption of  law,  but  of  fact,  and  may,  therefore,  be  controverted  by 
evidence. 

In  Whitbread  v.  Boulnois,  supra,  Baron  Alderson  laid  down  the 
rule  as  follows :  "When  a  party  having  knowledge  of  such  facts  as 
would  lead  any  honest  man,  using  ordinary  caution,  to  make  further 
inquiries,  does  not  make,  but  on  the  contrary  studiously  avoids  mak- 
ing, such  obvious  inquiries,  he  must  be  taken  to  have  notice  of  those 
facts,  which,  if  he  had  used  such  ordinary  diligence,  he  would  readily 
have  ascertained."  This  very  plainly  implies  that  proof  that  the  party 
has  used  due  diligence,  but  without  effect,  would  repel  the  presump- 
tion. In  this  case,  it  is  true,  the  decision  was  against  the  party  having 
the  notice.  But  in  Jones  v.  Smith,  1  Hare,  43,  we  have  a  case  in  which 
a  party,  who  had  knowledge  sufficient  to  put  him  on  inquiry,  was  nev- 
ertheless held  not  bound  by  the  notice. 

The  defendant  had  loaned  money  upon  the  security  of  the  estate  of 
David  Jones,  the  father  of  the  plaintiff.  At  the  time  of  the  loan  he 
was  informed,  by  David  Jones  and  his  wife,  that  a  settlement  was 
made  previous  to  the  marriage,  but  was  at  the  same  time  assured  that 
it  only  affected  the  property  of  the  wife.  He  insisted  upon  seeing  the 
settlement,  but  was  told  that  it  was  in  the  hands  of  a  relative,  and  that 
it  could  not  be  seen  without  giving  offense  to  an  aged  aunt  of  the  wife, 
from  whom  they  had  expectations.  David  Jones,  however,  after  some 
further  conversation,  promised  that  he  would  try  to  procure  it  for  ex- 
hibition to  the  defendant.  This  promise  he  failed  to  perform.  It 
turned  out  that  the  settlement  included  the  lands  upon  which  the  money 
was  loaned.  Here  was  certainly  knowledge  enough  to  put  the  party 
upon  inquiry;  for  he  was  apprised  of  the  existence  of  the  very  docu- 
ment which  was  the  foundation  of  the  complainant's  claim.  He  did 
inquire,  however,  and  made  every  reasonable  effort  to  see  the  settle- 
ment itself,  but  was  baffled  by  the  plausible  pretences  of  David  Smith. 
The  vice-chancellor  held  the  notice  insufficient.  He  said :  "The  af- 
fairs of  mankind  cannot  be  carried  on  with  ordinary  security,  if  a  doc- 
trine like  that  of  constructive  notice  is  to  be  refined  upon  until  it  is  ex- 
tended to  cases  like  the  present." 

Possession  by  a  third  person,  under  some  previous  title,  has  fre- 
quently but  inaccurately  been  said  to  amount  to  constructive  notice  to  a 
purchaser,  of  the  nature  and  extent  of  such  prior  right.  Such  a  pos- 
session puts  the  purchaser  upon  inquiry,  and  makes  it  his  duty  to  pur- 
sue his  inquiries  with  diligence,  but  is  not  absolutely  conclusive  upon 
him.  In  Hanbury  v.  Litchfield,  2  Myl.  &  Keene,  629,  when  the  ques- 
tion arose,  the  Master  of  the  Rolls  said :  "It  is  true  that  when  a  tenant 
is  in  possession  of  the  premises,  a  purchaser  has  implied  notice  of  the 
nature  of  his  title;  but  if,  at  the  time  of  his  purchase,  the  tenant  in 
possession  is  not  the  original  lessee,  but  merely  holds  under  a  deriva- 


Ch.  8)  PRIORITIES  907 

tive  lease,  and  has  no  knowledge  of  the  covenants  contained  in  the  orig- 
inal lease,  it  has  never  been  considered  that  it  was  want  of  due  dili- 
gence in  the  purchaser,  which  is  to  fix  him  with  implied  notice,  if  he 
does  not  pursue  his  inquiries  through  every  derivative  lessee  until  he 
arrives  at  the  person  entitled  to  the  original  lease,  which  can  alone  con- 
vey to  him  information  of  the  covenants." 

This  doctrine  is  confirmed  by  the  language  of  Judge  Story,  in  Flagg 
V.  Mann  et  al.,  2  Sumn.  554,  Fed.  Cas.  No.  4,847.  He  says:  "I  admit 
that  the  rule  in  equity  seems  to  be,  that  where  a  tenant  or  other  person 
is  in  possession  of  the  estate  at  the  time  of  the  purchase,  the  purchaser 
is  put  upon  inquiry  as  to  the  title;  and  if  he  does  not  inquire,  he  is 
bound  in  the  same  manner  as  if  he  had  inquired,  and  had  positive  no- 
tice of  the  title  of  the  party  in  possession." 

It  is  still  further  confirmed  by  the  case  of  Rogers  v.  Jones,  8  N.  H. 
264.  The  language  of  Parker,  J.,  in  that  case,  is  very  emphatic.  He 
says :  "To  say  that  he  (the  purchaser)  was  put  upon  inquiry,  and  that 
having  made  all  due  investigation,  without  obtaining  any  knowledge  of 
title,  he  was  still  chargeable  with  notice  of  a  deed,  if  one  did  really 
exist,  would  be  absurd." 

If  these  authorities  are  to  be  relied  upon,  and  I  see  no  reason  to 
doubt  their  correctness,  the  true  doctrine  on  this  subject  is,  that  where 
a  purchaser  has  knowledge  of  any  fact,  sufficient  to  put  him  on  in- 
quiry as  to  the  existence  of  some  right  or  title  in  conflict  with  that  he  is 
about  to  purchase,  he  is  presumed  either  to  have  made  the  inquiry,  and 
ascertained  the  extent  of  such  prior  right,  or  to  have  been  guilty  of  a 
degree  of  negligence  equally  fatal  to  his  claim,  to  be  considered  as  a 
bona  fide  purchaser.  This  presumption,  however,  is  a  mere  inference 
of  fact,  and  may  be  repelled  by  proof  that  the  purchaser  failed  to  dis- 
cover the  prior  right,  notwithstanding  the  exercise  of  proper  diligence 
on  his  part. 

The  judgment  should  be  reversed,  and  there  should  be  a  new  trial, 
with  costs,  to  abide  the  event. 

Paige,  J.  The  question  to  be  decided  is,  whether  under  the  find- 
ing of  the  referee,  the  plaintiff  is  to' be  deemed  to  have  had  at  the  time 
of  his  purchase,  legal  notice  of  the  prior  unrecorded  mortgage  of  the 
defendant.  The  referee  finds  that  the  plaintiff  had  sufficient  informa- 
tion or  belief  of  the  existence  of  such  mortgage  to  put  him  upon  in- 
quiry, but  that  upon  pursuing  such  inquiry  to  the  extent  of  such  in- 
formation and  belief,  he  did  not  find  that  such  mortgage  existed  or 
had  been  given.  It  seems  to  me  that  the  two  findings  are  inconsistent 
with  each  other.  If  the  plaintiff  on  pursuing  an  inquiry  to  the  full 
extent  of  his  information  and  belief  as  to  the  existence  of  the  defend- 
ant's mortgage,  was  unable  to  find  that  it  either  then  existed  or  had 
been  given,  the  highest  evidence  is  furnished  that  the  information  re- 
ceived or  belief  entertained  by  the  plaintiff'  was  not  sufficient  to  put 
him  on  inquiry  as  to  the.  existence  of  such  mortgage.  The  last  part  of 
this  finding  effectually  disproves  the  fact  previously  found  of  the  suffi- 


908  DERIVATIVE  TITLES  (Part  2 

ciency  of  notice  to  put  the  plaintiff  on  inquiry.    The  two  facts  are  ut- 
terly inconsistent  with  each  other,  and  cannot  possibly  coexist. 

The  remarks  of  Parker,  Justice,  in  Rogers  v.  Jones,  8  N.  H.  264, 
269,  are  directly  apposite  to  the  facts  found  by  the  referee.  Judge 
Parker  says:  "To  say  that  he  (demandant),  was  put  upon  inquiry, 
and  that  having  made  all  due  investigation  without  obtaining  any 
knowledge  of  title,  he  was  still  chargeable  with  notice  of  a  deed,  if  one 
did  really  exist,  would  be  absurd.''  The  sound  sense  of  these  observa- 
tions is  clearly  shown  by  the  principle  of  the  rule  that  information 
sufficient  to  put  a  party  upon  inquiry  is  equivalent  to  evidence  of  ac- 
tual notice,  or  to  direct  and  positive  notice.  That  principle  is,  that  such 
information  will,  if  followed  by  an  inquiry  prosecuted  with  due  dili- 
gence, lead  to  a  knowledge  of  the  fact  with  notice  of  which  the  party  is 
sought  to  be  charged.  Hence,  in  all  cases  where  the  question  of  im- 
plied notice  of  a  prior  unrecorded  mortgage  or  conveyance  arises  as  a 
question  of  fact  to  be  determined,  the  court  must  decide  whether  the 
information  possessed  by  the  party  would,  if  it  had  been  followed  up 
by  proper  examination,  have  led  to  a  discovery  of  such  mortgage  or 
conveyance.  If  the  determination  is  that  such  an  examination  would 
have  resulted  in  a  discovery  of  the  mortgage  or  conveyance,  the  con- 
clusion of  law  necessarily  results  that  the  information  possessed  by  the 
party  amounted  to  implied  notice  of  such  instrument.  But  if  the  de- 
termination is  the  converse  of  the  one  stated,  the  information  of  the 
party  cannot  be  held  to  be  an  implied  notice  of  the  deed  or  mortgage. 
These  propositions  will  be  found  to  be  fully  sustained  by  authority. 
Kennedy  v.  Green,  3  Myl.  &  Keene,  699;  2  Sugden  on  Vendors,  552 
(Am.  Ed.  of  1851,  marg.  page  1052);  4  Kent's  Com.  172;  Howard  Ins. 
Co.  V.  Halsey,  4  Sandf.  (6  Super.  Ct.)  577,  5'78;  same  case,  4  Seld. 
274,  275  ;  1  Story's  Eq.  Jur.  §§  398-400a ;  Jackson  v.  Burgott,  10  Johns. 
461,  6  Am.  Dec.  349;  Dunham  v.  Dey,  15  Johns.  568,  569,  8  Am.  Dec. 
282,  in  error;  Jackson  v.  Given,  8  Johns.  137,  5  Am.  Dec.  328;  Jolland 
V.  Stainbridge,  3  Ves.  478;  Pendleton  v.  Fay,  2  Paige,  205.  Where 
the  information  is  sufficient  to  lead  a  party  to  a  knowledge  of  a  prior 
unrecorded  conveyance,  a  neglect  fo  make  the  necessary  inquiry  to  ac- 
quire such  knowledge,  will  not  excuse  him,  but  he  will  be  chargeable 
with  a  knowledge  of  its  existence ;  the  rule  being  that  a  party  in  pos- 
session of  certain  information  will  be  chargeable  with  a  knowledge  of 
all  facts  which  an  inquiry,  suggested  by  such  information,  prosecuted 
with  due  diUgence,  would  have  disclosed  to  him.  4  Sandf.  (6  Super. 
Ct.)  578;  3  Myl.  &  Keene,  699.  In  this  case  the  fact  being  found  by 
the  referee,  that  the  plaintiff  after  pursuing  an  inquiry  to  the  extent 
of  his  information,  failed  to  discover  the  existence  of  the  defendant's 
mortgage,  it  seems  to  me  that  neither  law  nor  justice  will  justify  us  in 
holding  the  plaintiff  chargeable  with  implied  notice  of  such  mortgage. 
The  doctrine  of  notice  and  its  operation  in  favor  of  a  prior  unrecorded 
deed  or  mortgage  rests  upon  a  question  of  fraud,  and  on  the  evidence 
necessary  to  infer  it.    4  Kent's  Com.  172.    Actual  notice  affects  the 


Ch.  8)  PRIORITIES  909 

conscience,  and  convicts  the  junior  purchaser  of  a  fraudulent  intent 
to  defeat  the  prior  conveyance.  His  knowledge  of  facts  and  circum- 
stances at  the  time  of  the  second  purchase  sufficient  to  enable  him  on 
due  inquiry  to  discover  the  existence  of  the  prior  conveyance,  is  evi- 
dence from  which  a  fraudulent  intent  may  be  inferred.  15  Johns.  569; 
2  Johns.  Ch.  190;  Jackson  v.  Burgott,  10  Johns.  462,  6  Am.  Dec.  349. 
Now  if  it  is  ascertained  and  found  as  a  fact,  that  the  facts  and  cir- 
cumstances within  the  knowledge  of  the  second  purchaser,  at  the  time 
of  his  purchase,  were  insufficient  to  lead  him,  on  a  diligent  examination, 
to  a  discovery  of  the  prior  conveyance,  how  upon  this  finding  can  a 
fraudulent  intent  be  inferred,  and  if  not,  how  can  he  be  charged  with 
notice,  which  implies  a  fraudulent  intent?  It  is  not  in  the  nature  of 
things,  that  a  knowledge  of  the  same  facts  and  circumstances,  shall 
at  one  and  the  same  time,  be  held  evidence  of  both  innocence  and  guilt. 
I  think  the  rule  well  established  that  an  inference  of  a  fraudulent  in- 
tent on  the  part  of  a  junior  purchaser  or  mortgagee,  must  in  the  ab- 
■  sence  of  actual  notice,  be  founded  on  clear  and  strong  circumstances, 
and  that  such  inference  must  be  necessary  and  unquestionable.  Mc- 
Mechan  v-.  Griffing,  3  Pick.  (Mass.)  149,  154,  155,  15  Am.  Dec.  198; 
Hine  v.  Dodd,  2  Atk.  275 ;  Jackson  v.  Given,  8  Johns.  137,  5  Am.  Dec. 
328;  Norcross  v.  Widgery,  2  Mass.  509;  2  Johns.  Ch.  189;  15  Johns. 
,569 ;  8  Cow.  264,  266. 

For  the  above  reasons,  both  the  judgment  rendered  on  the  repori.  of 
the  referee,  and  the  judgment  of  the  general  term  affirming  the  same, 
should  be  reversed,  and  a  new  trial  should  be  granted.    , 


NORDMAN  V.  RAU. 

(Supreme  Court  of  Kansas,  1911.     86  Kuii.  19,  119  Pac.  351,  38  L.  R.  A.  [N.  S.] 
400,  Ann.  Cas.  191oB,  1068.) 

Mason,  J.  Johanne  Nordman  brought  an  action  to  enforce  her 
rights  as  to  a  tract  of  land  under  a  mortgage  given  by  Jacob  Rau. 
S.  A.  Webb,  a  defendant,  claimed  to  be  the  absolute  owner  of  the 
land  as  an  innocent  purchaser  without  notice  of  the  mortgage.  Find- 
ings of  fact  were  made  to  the  effect  that  the  mortgage  was  executed 
and  in  fact  recorded  in  the  office  of  the  register  of  deeds  of  the 
county  where  the  land  was  situated,  but  was  never  acknowledged; 
that  while  matters  were  in  this  situation  a  personal  judgment  was 
rendered  against  Rau,  an  execution  was  issued  and  levied  on  the 
land  as  his  property,  and  it  was  sold  to  Webb  at  a  sheriff's  sale,  which 
was  duly  confirmed,  and  under  which  a  deed  was  subsequently  made 
to  him ;  that  the  resident  attorney  who  acted  for  Webb  in  bidding  in 
the  land  at  the  sheriff's  sale,  knew  of  the  existence  and  contents  of 
the  record  of  the  unacknowledged  mortgage.  The  trial  court  gave 
judgment  for  the  owner  of  the  mortgage,  holding  it  to  be  valid  as  to 
Webb  because  his  agent  knew  of  the  actual  state  of  the  record.  Webb 
appeals. 


910  DERIVATIVE  TITLES  (Part  2 

The  appellant  argues  that  inasmuch  as  the  attorney  who  bid  in  the 
land  for  Webb  represented  him  only  in  that  particular  transaction 
and  had  no  other  connection  with  him,  the  knowledge  of  the  agent 
was  not  equivalent  to  the  knowledge  of  the  principal.  It  fairly  appears, 
however,  that  the  attorney  gained  his  knowledge  of  the  state  of  the 
record  after  having  been  employed  to  attend  the  sale,  and  before  bid- 
ding in  the  property,  and  that  in  this  aspect  of  the  matter  the  case 
falls  within  the  rule  that  "a  principal  is  *  *  *  affected  with 
knowledge  of  all  material  facts  of  which  the  agent  receives  notice  or 
acquires  knowledge  while  acting  in  the  course  of  his  employment."  31 
Cyc.  1587.  A  purchaser  at  a  sheriff's  sale  is  entitled  to  the  protection 
of  the  recording  act.  Lee  v.  Bermingham,  30  Kan.  312,  1  Pac.  73; 
note,  21  L.  R.  A.  35. 

It  is  therefore  necessary  to  decide  whether  an  unacknowledged 
mortgage,  which  has  been  copied  into  the  record  book  of  the  register 
of  deeds,  is  void  against  one  who  buys  the  property  knowing  the  con- 
tents of  the  record,  but  is  otherwise  an  innocent  purchaser  for  value. 
An  instrument  affecting  real  estate  is  entitled  to  record  only  when 
it  has  been  acknowledged  or  proved  as  provided  by  the  statute.  And 
where  such  an  instrument  is  recorded  without  having  been  so  acknowl- 
edged or  proved,  the  record  does  not  impart  notice  to  anyone.  Wick- 
ersham  v.  Chicago  Zinc  Co.,  18  Kan.  481,  26  Am.  Rep.  784;  Wis- 
comb  v.  Cubberly,  51  Kan.  580,  589,  33  Pac.  320.  The  statute  relat- 
ing to  the  effect  of  a  failure  to  record  instruments  affecting  real  es- 
tate reads:  "No  such  instrument  in  writing  shall  be  valid,  except  be- 
tween the  parties  thereto,  and  such  as  have  actual  notice  thereof,  until 
the  same  shall  be  deposited  with  the  register  of  deeds  for  record." 
Gen.  St.  1868,  c.  22,  §  21,  Gen.  St.  1909.  §  1672. 

The  precise  question  involved  is  whether  one  who  has  seen  and  read 
in  the  records  in  the  office  of  the  register  of  deeds  what  is  in  fact 
a  copy  of  an  existing  unacknowledged  instrument  is  to  be  regarded  as 
having  "actual  notice"  of  the  instrument  itself,  within  the  meaning  of 
the  statute.  In  Massachusetts  and  in  Indiana  "actual  notice"  is  inter- 
preted as  equivalent  to  actual  knowledge.  Webb,  Record  of  Tide,  § 
222,  p.  356,  note  3.  But  the  general  rule  is  that  evidence  of  facts 
and  circumstances  sufficient  to  put  upon  inquiry  amount  to  actual 
notice.  Webb,  Record  of,  Title,  §  222,  p.  356,  note  4.  "Actual  notice 
does  not  mean  that  which  in  metaphysical  strictness  is  actual  in  its 
nature,  because  it  is  seldom  that  ultimate  facts  can  be  communicated  in 
a  manner  so  direct  and  unequivocal  as  to  exclude  doubts  as  to  their 
existence  or  authenticity.  Actual  notice  means,  among  other  things, 
knowledge  of  facts  and  circumstances  so  pertinent  in  character  as  to 
enable  reasonably  cautious  and  prudent  persons  to  investigate  and 
ascertain  as  to  the  ultimate  facts."  Pope  v.  Nichols,  61  Kan.  230, 
236,  59  Pac.  257,  259.  "Actual  notice  may  be  either  express  or  im- 
plied ;  that  is,  it  may  consist  of  knowledge  actually  brought  personally 
home,  or  it  may  consist  of  knowledge  of  facts  so  informing  that  a 


Ch.  8)  PRIORITIES  911 

reasonably  cautious  person  would  be  Jed  by  them  to  the  ultimate  fact. 
*  *  *  Actual  notice  is  implied  only  when  the  known  facts  are 
sufficiently  specific  to  impose  the  duty  to  investigate  further,  and  when 
such  facts  furnish  a  natural  clue  to  the  ultimate  fact."  Faris  v.  Fin- 
nup,  84  Kan.  122,  124,  113  Pac.  407,  408. 

This  court  is  of  the  opinion  (not  shared  by  the  writer)  that  one  who 
has  seen  the  record  of  an  unacknowledged  instrument  is  not  deemed 
because  of  that  fact  to  have  actual  notice  of  the  instrument  itself, 
upon  these  grounds :  To  charge  him  with  such  notice  is  to  require 
him  to  assume,  without  proof  and  without  competent  evidence,  that 
a  valid  conveyance  is  in  existence  corresponding  to  the  unauthorized 
copy.  If  he  is  required  to  give  any  attention  to  the  matter  at  all  he 
may  with  ecjual  or  greater  reason  suppose  tlie  parties  to  have  aban- 
doned whatever  intention  they  may  have  had  to  execute  such  a  con- 
veyance, from  the  fact  that  they  failed  to  have  a  certificate  of  acknowl- 
edgment attached.  To  charge  him  with  actual  notice  of  the  existence 
of  a  conveyance  because  he  has  seen  a  copy  of  it  which,  without  legal 
authority,  has  been  written  in  a  book  of  public  records,  is  essentially 
to  give  such  copy  the  force  of  a  valid  record.  To  hold  that  the  record 
of  an  unacknowledged  conveyance,  if  known  to  a  prospective  buyer, 
amounts  to  actual  notice  of  the  instrument,  is  to  compel  him  to  give 
it  force  as  evidence  which  the  court  itself  would  refuse  it.  The  view 
is  thus  elaborated  in  Kerns  v.  Swope  (Pa.  Sup.  Ct.  1833)  2  Watts,  75 : 

"1  he  registration  being  without  the  authority  of  the  law,  was  the 
unofficial  act  of  the  officer,  which  could  give  the  copy  no  greater  va- 
lidity than  the  original  deprived  of  legal  evidence  of  execution ;  nor 
even  so  much,  for  an  original  deed  exhibited  to  a  purchaser  would 
affect  him  though  it  were  unaccompanied  with  the  evidence  of  its  ex- 
ecution. But  here  the  registry  was  no  better  than  a  copy  made  by  a 
private  person  in  a  memorandum  book ;  from  which  a  purchaser  would 
be  unable  to  determine  whether  there  were,  in  fact,  an  indorsement 
on  the  deed,  or  whether  it  had  been  truly  copied — especially  when  nei- 
ther the  copy,  nor  an  exemplification  of  it,  would  be  legal  evidence  of 
the  fact  in  a  court  of  justice.  Unquestionably  a  purchaser  would  not 
be  afi'ected  by  having  seen  the  copy  of  a  conveyance  among  tlie  papers 
of  another,  or  an  abstract  of  it  in  a  private  book.  The  whole  effect 
of  a  registry,  whether  as  evidence  of  the  original  or  as  raising  a  legal 
presumption  that  the  copy  thus  made  equivalent  to  the  original  had 
been  actually  inspected  by  the  party  to  be  affected,  is  derived  from  the 
positive  provisions  of  the  law;  and  when  unsustained  by  these,  a 
registry  can  have  no  operation  whatever.  Stripped  of  artificial  eflfect, 
it  is  but  the  written  declaration  of  the  person  who  was  the  officer  at 
the  time,  that  he  had  seen  a  paper  in  the  words  of  the  copy  which 
purported  to  be  an  original.  But  to  say  nothing  in  this  place  of  the 
incompetency  of  such  a  declaration  as  evidence  of  the  fact,  on  what 
principle  would  a  purchaser  be  bound  to  attend  to  the  hearsay  informa- 
tion of  one  who  is  not  qualified  to  give  it?"    2  Watts  (Pa.)  78. 


912  DERIVATIVE  TITLES  (Part  2 

The  same  view  was  indicated  in  Banister  v.  Fallis,  85  Kan.  320,  116 
Pac.  822,  where  it  was  said  of  the  record  of  an  unacknowledged  in- 
strument: "The  instrument  itself,  if  there  were  one,  had  no  validity 
except  between  tlie  parties  and  those  having  actual  notice,  not  of  what 
was  on  record,  but  of  the  instrument  itself."  85  Kan.  322,  116  Pac. 
823. 

The  judgment  is  reversed  and  the  cause  remanded  with  directions 
to  render  judgment  upon  the  findings  quieting  the  title  of  Webb. 

Mason,  J.  (dissenting).  My  own  view  of  the  question  presented  is 
this :  Wliere  a  prospective  buyer  of  land  sees  upon  the  record  what 
purports  to  be  the  copy  of  an  instrument  bearing  no  certificate  of  ac- 
knowledgment (or  a  defective  one,  for  the  rule  would  necessarily  be 
the  same),  the  inference  which  he  would  naturally  and  almost  neces- 
sarily draw  would  be  that  tlie  record  was  made  at  the  instance  of  the 
grantee,  and  that  the  grantee  claimed  to  have  an  interest  in  the  land 
under  an  instrument  in  the  language  of  the  copy.  The  record  would 
not  be  competent  legal  evidence  that  such  an  instrument  had  been 
executed,  but  it  would  suggest  that  probability  so  strongly  that  a  pru- 
dent person  having  knowledge  of  it  would  be  put  upon  inquiry.  It 
would  give  him  a  definite  and  tangible  clue,  which,  if  diligently  fol- 
lowed up,  would  ordinarily  bring  the  truth  of  the  matter  to  light.  In 
the  present  case,  if  an  inquiry  had  been  prosecuted  with  reasonable 
diligence,  the  existence  of  the  mortgage  would  necessarily  have  been 
developed. 

In  Banister  v.  Fallis;  85  Kan.  320,  116  Pac.  822,  the  purchaser  of 
land  objected  to  the  title  because  the  record  contained  what  purported 
to  be  a  copy  of  a  contract  affecting  it.  The  objection  was  held  un- 
tenable because,  the  contract  not  having  been  acknowledged,  the  rec- 
ord was  not  evidence  of  its  execution,  and  no  other  evidence  on  the 
subject  was  ofi^ered;  and  because  the  contract  could  not  constitute  a 
cloud  in  any  event,  inasmuch  as  it  purported  to  be  made  by  a  stranger 
to  tlie  title.  An  additional  reason  was  stated  in  the  language  quoted 
in  the  foregoing  opinion:  "The  instrument  itself,  if  there  were  one, 
had  no  validity  except  between  the  parties  and  those  having  actual  no- 
tice, not  of  what  was  on  record,  but  of  the  instrument  itself."  85  Kan. 
322,  116  Pac.  823.  I  do  not  regard  that  decision  as  a  definite  deter- 
mination of  the  question  here  involved. 

I  think  the  only  case  involving  the  exact  question  and  supporting 
the  decision  here  made  is  Kerns  v.  Swope  (Fa.  Sup.  Ct.  1833J  2  Watts, 
75,  cited  in  the  opinion.  That  case  is  disapproved  in  the  American 
notes  to  White  &.Tudor's  Leading  Cases  in  Equity,  vol.  2,  p.  152. 
In  24  A.  &  E.  Encycl.  of  L.  142,  -143,  it  is  said:  "If  an  instrument  be 
not  *  *  *  entitled  to  record  because  of  its  defective  execution  or 
a  failure  to  comply  with  some  of  the  prerequisites  to  recordation,  the 
record  thereof  will  be  a  mere  nullity  and  will  not  operate  to  give  con- 
structive notice.  *  *  *  But,  *  *  *  of  course,  such  a  record 
may  be  instrumental  in  giving  actual  notice  of  the  rights  claimed  un- 


Ch.  8)  PRIORITIES  913 

der  the  instrument  where  the  knowledge  of  its  existence  is  brought 
home  to  the  party  claiming  against  such  instrument." 

Of  the  four  cases  cited  in  support  of  this  text,  these  three  are  di- 
rectly in  point :  Rooker  v.  Hoof stetter,  26  Can.  Supr.  Ct.  41 ;  Woods 
V.  Garnett,  72  Miss.  78,  16  South.  390;  and  Musgrove  v.  Bonser,  5 
Or.  313,  20  Am.  Rep.  117.  To  these  may  be  added  Walter  v.  Hartwig 
et  al.,  106  Ind.  123,  6  N.  E.  5,  and  Hastings  v.  Cutler,  24  N.  H.  481, 
which  are  directly  in  point,  and  Gilbert  and  others  v.'  Jess,  impleaded, 
31  Wis.  110,  and  Musick  v.  Barney,  49  Mo.  458,  which  are  substan- 
tially so.  The  New  Hampshire  case  is  the  leading  one  on  the  sub- 
ject. The  grounds  of  the  decision  are  shown  by  this  extract  from 
the  opinion,  which  is  typical  of  the  reasoning  in  the  other  cases : 

"As  the  deed  in  this  case  was  not  executed  according  to  the  statute, 
the  registration  as  such  is  inoperative ;  that  is  to  say,  the  registration 
is  not  constructive  notice  of  the  conveyance.  But  if  by  means  of  that 
registration  of  the  defective  deed  the  defendants  had  actual  notice  of 
the  plaintiff's  title,  they  are  charged  with  the  notice  as  in  other  cases. 
The  defendants,  when  they  found  the  copy  of  the  plaintiff's  deed  on 
record,  must  have  understood  that  the  intended  record  was  to  give 
information  that  such  a  deed  had  been  made,  and  that  the  plaintiff 
claimed  the  land  under  it.  This  must  be  regarded  as  actual  notice,  such 
as  every  reasonable  and  honest  man  would  feel  bound  to  act  upon." 
Hastings  v.  Cutler,  24  N.  H.  481,  483. 

K  writer  in  the  Central  Law  Journal,  in  discussing  the  source  from 
which  "actual  notice"  should  come,  says:  "It  is  not  essential  in  every 
case  that  the  notice  should  come  from  a  party  in  interest,  but  that  it 
should  come  from  some  one  who  is  capable  not  only  of  informing  the 
party  of  the  adverse  claim,  but  who  can  give  such  definite  informa- 
tion as  to  details  as  will  lead  to  the  acquisition  of  full  knowledge  of 
the  facts.  If  this  is  a  correct  deduction,  then  the  copy  of  a  deed,  even 
though  it  were  defectively  acknowledged,  would  amount  to  actual  no- 
tice of  a  higher  degree  than  mere  oral  information  of  the  existence  of 
such  deed,  even  though  the  copy  was  made  by  a  third  party,  and  the 
oral  information  came  from  a  prior  grantee.  Hence  the  registry  of 
a  defectively  acknowledged  deed  would  amount  to  notice  of  the  con- 
veyance, provided  it  were  either  admitted  or  proved,  that  the  subsequent 
purchaser  saw  and  examined  the  record  where  the  deed  was  tran- 
scribed."    4  Central  Law  Jour.  p.  293. 

The  author  of  Wade  on  Notice,  in  an  article  published  in  the  Amer- 
ican Law  Review  in  1885,  said:  "Registration  of  a  deed,  void  for  in- 
formalities, as  constructive  notice,  coming  to  the  knowledge  of  tlie 
subsequent  purchaser,  puts  him  in  the  direct  line  of  inquiry,  and  is 
actual  notice  of  every  fact  to  which  that  inquiry  would  lead."  19 
Am.  Law  Rev.  p.  88. 

PoRTKR,  J.  (dissenting).  I  concur  in  the  foregoing  dissent,  and  be- 
lieve that  the  decision,  especially  when  applied  to  recorded  instruments 
Aig.Prop. — 58 


914  DERIVATIVE  TITLES  (Part  2 

which  have  defective  acknowledgments,  may  work  great  injustice  to 
innocent  persons,  and  will  produce  results  which  the  legislature  in 
adopting  the  recording  act  never  intended." 


(C)  Effectiveness  of  Record 
SIGOURNEY  V.  LARNED.. 

(Supreme  Judicial  Court  of  Massachusetts,  1830.     10  Pick.  72.) 

This  was  a  bill  in  equity  to  redeem.  Isaac  Amidon,  under  whom  both 
parties  claimed,  made  a  deed  of  mortgage  to  the  defendant,  dated  the 
7th  of  April,  1827. 

It  appeared  by  the  deposition  of  the  register  of  deeds,  that  on  the  8th 
of  April,  which  was  Sunday,  Amidon  came  to  his  dwelling-house  and 
entered  the  door  while  the  clock  was  striking  twelve  at  midnight,  and 
that  Amidon  handed  the  deed  to  the  register,  who  was  a  justice  of  the 
peace,  requesting  him  to  take  the  acknowledgment  of  the  deed  and  to 
record  it. 

The  register  received  the  deed,  but  he  did  not  recollect  whether  the 
certificate  of  the  acknowledgment  was  affixed  at  tjiat  time,  or  after  day- 
light on  the  same  morning.  . 

The  register  made  a  memorandum  on  the  deed,  that  it  was  received 
and  recorded  on  the  9th  of  April  at  one  minute  after  twelve  o'clock 
a.  m. 

32  As  to  what  is  sufficient  "notice"  to  affect  the  subsequent  purchaser  in 
Massachusetts,  see  I'oinroy  v.  Stevens,  11  Mete.  (Mass.)  244  (lS4n).  But  cf. 
George  v.  Kent,  7  Allen  (Mass.)  16  (1S63).  In  Maine,  see  Spofford  v.  Weston,  21) 
]\Ie.  140  (1S48I;  Knapp  v.  Bailey,  79  Me.  1!)5,  9  All.  122.  1  Am.  St.  liep.  295 
(1887).  In  Ohio,  under  the  mortgage  registry  statute,  the  clearest  sort  of  no- 
tice d(K's  not  affect.  Mayham  v.  Coombs,  14  Ohio,  429  (184(j).  And  in  North 
Carolina  the  same  is  true  as  to  all  conveyances.  Wood  v.  Lewey,  153  N.  C. 
401,  C9  S.  E,  268  (1910). 

A.  takes  possession  of  land  belonging  to  B.  and  holds  same  adversely  for  the 
period  of  the  statute  of  limitations.  B.  then  sells  and  conveys  the  laiid  to  X., 
who  pays  value  therefor  without  any  knowledge  of  A.'s  righti*.  What  effect,  if 
any,  does  such  sale  and  conveyance  have  upou  A.'s  rights V 

Lis  Tendens.— A  purchaser  of  land  from  a  party  involved  in  litigation  re- 
garding the  title  to  that  land  takes  subject  to  the  results  of  such  litigation.  "It 
is  scarcely  correct  to  speak  of  lis  pendens  as  alfecting  a  purchaser  through  the 
doctrine  of  notice,  though  undoubtedly  the  language  of  the  courts  often  so  de- 
scribes its  operation.  It  affects  him,  not  beVause  it  amounts  to  notice,  but  be- 
cause the  law  does  not  allow  litigant  parties  to  give  to  others,  i>ending  the 
litigation,  lights  to  the  property  in  dispute,  so  as  to  prejudice  the  opposite  par- 
ty." Bellamy  v.  Sabiue,  1  De  G.  &  J.  566,  578  (1857).  The  prlncii)le  is  as  ap- 
plicable to  actions  at  law  as  to  suits  in  equity,  though  the  occasions  for  its 
opeiation  seldom  arise  in  the  case  of  actions  at  law. 

By  statute  in  many  states  a  notice  of  the  r)ending  litigation  must  be  record- 
ed. Without  such  recording  pursuant  to  the  statute,  a  bona  tide  purchaser 
for  value  without  other  notice  of  the  litigation  may  acquire  rights  even  from  a 
party  to  the  suit,  which  will  prevail  over  the  rights  of  other  p.irties,  though 
successful  in  the  litigation,  See,  generally,  on  the  subject,  2  Pomeroy,  Eq.  Ju- 
ris. §  632  et  seq. 


Ch.  8)  PRIORITIES  915 

The  land  was  subject  to  two  previous  mortgages,  which  were  after- 
wards assigned  to  the  defendant. 

The  plaintiff  derived  his  title  from  an  attachment  made  "instantly 
after  twelve  o'clock"  on  the  morning  of  the  9th  of  April,  without  no- 
tice of  the  mortgage  to  the  defendant. 

The  plaintiff  tendered  the  sum  due  on  the  two  mortgages  of  which 
the  defendant  was  the  assignee,  and  the  question  was,  whether  the 
attachment  was  to  be  preferred  before  the  third  mortgage. 

Per  Curiam.  Whether  a  delivery  of  a  deed  to  the  register  at  his 
dwelling-house  is  equivalent  to  a  delivery  at  his  office,  need,  not  be 
determined,  as  the  Court  are  of  opinion,  that  independently  of  that 
question,  the  deed  to  the  defendant  was  received  and  recorded  under 
such  circumstances  as  will  not  allow  it  to  have  the  preference  over 
the  attachment.  It  was  not  in  a  state  to  be  considered  as  recorded, 
until  after  the  attachment  was  made.  It  should  not  only  be  acknowl- 
edged, but  the  certificate  of  acknowledgment  should  be  completed,  be- 
fore the  delivery  to  the  register,  in  order  that  such  delivery  shall  con- 
stitute a  record.  The  certificate  of  a'cknowledgment  is  to  be  a  part 
of  the  record.  It  is  not  sufficient  that  the  register  is  informed  of  the 
acknowledgment ;  the  object  of  recording  is  to  give  notice  to  others. 
Until  this  certificate  was  affixed,  the  fact  that  the  deed  was  acknowl- 
edged and  in  the  register's  hands,  could  not  be  notice.  By  the  statute, 
(St.  1783,  c.  Z7 ,  §  4,)  a  deed,  to  have  effect  against  any  but  the  grantor 
and  his  heirs,  and  to  entitle  it  to  be  recorded,  must  be  acknowledged 
by  such  grantor  before  a  justice  of  the  peace.  Here  Mr.  Ward  acted 
in  the  double  capacity  of  justice  of  the  peace,  and  register  of  deeds. 
He  could  not  consider  the  deed  as  in  his  official  custody  in  the  latter 
capacity,  until  he  had  done  his  office  in  taking  the  acknowledgment  of 
the  grantor  in  the  former,  which  must  necessarily  take  some  time. 
The  exact  time  when  the  certificate  was  made,  does  not  distinctly  ap- 
pear ;  but  the  probability  is,  tliat  it  was  not  done  till  the  next  morning. 

But  we  do  not  decide  the  case  upon  that  ground ;  had  the  magistrate 
proceeded  instantly  to  write  the  certificate  of  acknowledgment,  it  must 
have  taken  some  time,  during  which  the  attachment  took  effect. 
Where,  in  a  controverted  question  of  property,  the  parties  stand  upon 
equal  grounds,  in  point  of  equity,  the  legal  title  shall  prevail ;  and  in 
such  cases  slight  circumstances  are  sufficient  to  determine  that  prior- 
ity, upon  which  the  preferable  legal  title  depends.  Here  we  think  the 
attachment  was  prior  in  time,  and  the  maxim  prior  in  tempore,  potior 
in  jure,  must  decide  in  favour  of  the  attaching  creditor.  Redemption 
decreed. 


916  DERIVATIVE  TITLES  (Part  2 

PRINGLE  V.  DUNN. 
(Supreme  Court  of  Wisconsin,  1875.     '61  Wis.  440,  19  Am.  Rep.  772.) 

Action  commenced  in  Columbia  county,  August  24,  1863,  to  fore- 
close a  mortgage  alleged  to  have  been  executed  by  the  defendants, 
Andrew  Dunn  and  wife,  to  the  La  Crosse  &  Milwaukee  Railroad  Com- 
pany upon  the  northeast  quarter  of  the  southeast  quarter  of  section 
six,  township  twelve  north,  of  range  nine  east,  in  Columbia  county, 
to  secure  one  of  the  bonds  of  said  company  for  $5,000  payable  Jan. 
1,  1864;  said  mortgage  bearing  date  April  11,  1854,  and  alleged  to  have 
been  recorded  on  that  day  in  the  office  of  the  register  of  deeds  for 
Columbia  county.  The  plaintiff  claimed  to  hold  the  bond  and  mort- 
gage as  a  bona  fide  purchaser  for  value  before  due.  The  assignment 
to  him  was  not  of  record.  The  action  was  originally  brought  against 
the  Dunns,  the  La  Crosse  &  Milwaukee  Railroad  Company  and  Hans 
Crocker,  its  receiver.  Numerous  other  defendants  were  afterwards 
brought  in  by  amendment,  and  among  them  the  Milwaukee  &  St.  Paul 
Railway  Company,  Thomas  Maloy,  Stanislaus  Bartosz,  and  Felix  Mc- 
Lindon.  The  complaint,  as  amended,  contained  as  against  all  the  de- 
fendants, except  the  Dunns,  the  allegation,  that  they  had,  or  claimed, 
some  interest  in,  or  title  to  the  mortgaged  premises  which,  if  any,  was 
subsequent  and  subject  to  the  mortgage  of  the  plaintiff. 

The  Milwaukee  &  St.  Paul  Railway  answered  and,  among  other 
things,  denied  specially  that  the  plaintiff's  mortgage  was,  at  or  before 
the  time  of  recording  witnessed  so  as  to  entitle  it  to  record,  and  alleged 
that  the  record  of  the  same  has  and  shows  no  subscribing  witnesses' 
names  thereon,  and  that  the  said  company  had  since  in  good  faith  pur- 
chased a  portion  of  the  premises  covered  by  said  mortgage  without 
any  actual  knowledge  of  the  plaintiff's  mortgage.  It  appeared  that 
the  quarter  quarter  section  embraced  in  the  mortgage  had  subsequently 
been  platted  as  an  addition  to  the  city  of  Portage,  and  the  various  lots 
thereof  conveyed  to  divers  parties,  who  were  made  defendants.  The 
mortgagor  Dunn  died  before  suit  brought. 

Venue  was  changed  to  Milwaukee  county.  The  testimony  as  to  the 
witnessing  and  recording  of  the  plaintiff's  mortgage,  on  which  action 
was  brought,  was  voluminous  and  conflicting,  but  substantially  as  fol- 
lows ;  The  plaintiff  offered  in  evidence  the  mortgage  which  purported 
to  have  been  signed  by  Andrew  Dunn  and  Sarah  J.  Dunn  as  mort- 
gagors and  by  H.  C.  Baker  and  A.  J,  McFarlane,  as  subscribing  wit- 
nesses, and  acknowledged  before  Harvey  C.  Baker,  as  notary  public. 
The  defendant  offered  in  evidence  a  certified  copy  of  the  record  of 
said  mortgage,  certified  by  the  register  of  deeds  of  Columbia  county, 
which  shows  the  mortgage  the  same  as  the  original,  except  that  there 
are  no  witnesses'  names  in  the  record.  The  original  record  was  also 
offered  showing  the  same  discrepancy.  The  deposition  of  Wm.  Owen 
was  read,  who  testified  that  he  was  the  register  of  deeds  of  Columbia 


Ch.  8)  PRIORITIES  917 

county,  at  the  time  the  mortgage  was  recorded ;  that  he  signed  the  cer- 
tificate indorsed  thereon;  that  after  the  recording  he  compared  the 
mortgage  with  the  record,  assisted  by  one  P.  M.  Johnson,  he  holding 
the  mortgage  and  comparing,  while  Johnson  read  the  record ;  that  the 
record  was  written  by  Johnson,  who  was  at  the  time  in  the  employ 
of  the  La  Crosse  &  Milwaukee  Company;  that  the  company  were 
desirous  of  having  their  farm  mortgages  speedily  recorded,  and  made 
an  arrangement  with  the  register  whereby  the  copying  of  the  deeds 
into  the  records  was  done  by  Johnson,  and  the  register  thereafter  com- 
pared with  him  and  certified  to  the  record.  The  witness  was  confident 
he  had  compared  this  mortgage  by  the  mark  "ex,"  made  at  the  foot 
of  the  page,  which  was,  as  he  was  positive,  in  his  own  handwriting; 
that  at  the  time  of  the  comparing  there  were  no  names  of  subscrib- 
ing witnesses  on  the  deed ;  that,  as  he  thought,  the  fact  was  men- 
tioned at  the  time,  and  that  Johnson  said  he  would  go  and  have  wit- 
nesses' names  subscribed  to  the  mortgage.  Hugh  McFarlane  testi- 
fied that  he  was  father  of  A.  J.  McFarlane,  whose  name  was  upon  the 
mortgage  as  witness ;  that  A.  J.  McFarlane  was  dead ;  tliat  he  knew 
his  handwriting  and  was  positive  the  signature  upon  the  mortgage 
was  not  his  son's  handwriting;  that  the  son  was  14  or  15  years  old 
at  the  date  of  the  mortgage.  Four  other  witnesses  testified  to  knowl- 
edge of  A.  J.  McFarlane's  handwriting,  and  that  they  thought  the 
signature  upon  the  mortgage  was  not  his. 

The  plaintiff,  as  rebutting  evidence,  produced  P.  M.  Johnson,  who 
testified  that  he  recorded  the  mortgage ;  that  he  could  not  recollect 
whether  the  witnesses'  names  were  upon  the  original  mortgage  at  the 
time  of  recording;  that  it  was  his  special  business  at  the  time  to  see 
that  the  mortgages  were  properly  executed,  and,  if  they  had  been 
wanting,  he  thought  it  hardly  possible  that  the  fact  would  have  escaped 
his  notice;  that  the  record  was  made  hastily,  and  the  ottiission  of  the 
names  in  the  record  was  probably  an  oversight  on  his  part ;  that  this 
was  more  likely  than  that  he  should  have  suffered  the  deed  to  pass 
through  his  hands  incompletely  executed.  The  plaintiff  also  offered 
in  evidence  the  original  general  index  from  the  office  of  the  register 
of  deeds  of  Columbia  county  and  read  therefrom  the  entry  of  the 
reception  and  record  of  said  mortgage  in  form  and  manner  as  pre- 
scribed by  section  123,  c.  10,  R.  S.  1849.'  The  plaintiff  also  introduced 
as  a  witness  Harvey  C.  Baker,  who  testified  that  both  the  grantors  in 
the  mortgage  signed  and  acknowledged  the  same  before  him  as  notary 
and  that  he  subscribed  the  same  as  a  witness  at  the  time;  that  A.  J. 
McFarlane  went  with  him  to  the  house  of  Andrew  Dunn  to  obtain 
the  signature  and  acknowledgment  of  Mrs.  Dunn ;  could  not  positively 
remember  as  to  McFarlane's  signing;  but  his  best  recollection  was, 
that  he  was  present  and  witnessed  the  signing  of  the  mortgage;  did 
not  know  young  McFarlane's  handwriting.  Witness's  recollection  in 
regard  to  the  circumstances  was  quite  indistinct.  He  was  contradict- 
ed, as  to  conversations  held  with  A.  B.  Alden,  who  was  introduced  by 


918  DERIVATIVE  TITLES  (Part  2 

defendants  and  testified  that  Baker  had  admitted  to  him  that  one  of 
the  mortgages  given  by  Dunn  had  been  returned  to  him  by  Johnson 
to  have  witnesses  procured.  Some  evidence  was  introduced  tending 
to  impeach  his  reputation  for  truth  and  veracity.  Mrs.  Sarah  J.  Dunn 
testified  that  she  had  no  recollection  of  signing  and  acknowledging  the 
mortgage,  or  of  Baker  and  McFarlane  coming  to  the  house,  as  Baker 
had  testified. 

Thomas  Maloy,  one  of  the  defendants,  admitted  in  his  deposition 
that  he  had  heard  at  the  time  he  purchased  his  lots,  that  there  was  a 
defective  railroad  mortgage  said  to  be  upon  the  lots,  but  which  was 
reputed  to  be  good  for  nothing;  that  JMary  Maloy,  his  wife,  also 
owned  a  lot  purchased  after  the  mortgage ;  that  he  was  present  at  the 
purchase  and  did  the  business  for  her ;  that  he  had  previously  heard 
that  there  was  such  defective  mortgage.  There  was  no  evidence  that 
she  had  heard  of,  or  had  any  notice  of  its  existence. 

Felix  McLindon,  one  of  the  defendants,  admitted  in  his  deposition 
that  he  "knew  by  report  that  there  was  a  railroad  mortgage  on  the 
place  at  the  time  he  bought  two  of  the  lots  covered  by  the  mortgage 
in  suit." 

.Stanislaus  Bartosz,  a  defendant,  who  owned  and  lived  on  several  of 
the  lots,  testified  that  he  had  no  actual  knowledge  of  the  mortgage;  but 
it  appeared  in  evidence  that  his  grantor,  Simon  Bartosz,  had  purchased 
from  H.  W.  Tenney,  one  of  the  parties  who  had  platted  the  forty  acres 
embraced  in  the  mortgage  in  suit,  and  that  Tenney 's  deed  to  Simon 
Bartosz  contained  the  clause :  "said  premises  are  free  and  clear  from 
all  incumbrances,  except  a  mortgage  to  the  La  Crosse  Railroad  Com- 
pany, which  I  am  to  save  said  Bartosz  harmless  from." 

The  court  below  found  that  the  mortgage  was  not  subscribed  by 
Baker  and  McFarlane  as  witnesses  at  the  time  of  the  execution  there- 
of, and  not  until  after  the  recording  thereof,  but  was  so  subscribed 
afterwards,  but  was  not  again  recorded;  that  the  plaintiff  purchased 
the  bond  and  mortgage  in  regular  course  of  business,  and  was  the 
owner  and  holder  thereof ;  that  none  oT  the  defendants  had  actual  no- 
tice of  the  mortgage,  and  that  the  record  thereof,  before  the  same  was 
witnessed,  was  not  constructive  notice  of  the  mortgage ;  and  that  the 
defendants  are  entitled  to  judgment  that  the  complaint  be  dismissed. 

To  these  findings  tlie  plaintiff  excepted,  and  appealed  from  tlie  judg- 
ment. 

Cole,  J.  Before  approaching  the  legal  questions  involved  in  this 
case,  it  is  necessary  to  determine  a  question  of  fact.  And  that  is.  Does 
the  evidence  show  that  the  mortgage  sought  to  be  foreclosed  was 
properly  attested  when  first  left  at  the  office  of  the  register,  so  as  to 
entitle  it  to  record  ?  There  is  considerable  testimony  in  the  case  which 
tends  strongly  to  prove  that  the  mortgage  had  no  witnesses  when  it 
was  recorded.  And  the  court  found  as  a  fact  that  the  mortgage  was 
not  subscribed  by  the  witnesses.  Baker  and  McFarlane,  at  the  time  of 
its  execution  and  before  it  was  transcribed  upon  tke  records  and  en- 


Ch.  8)  PRIORITIES  OW 

tered  in  the  general  index,  but  was  subscribed  by  these  witnesses  after 
it  was  recorded,  and  that  it  was  not  again  recorded.  This  finding  af- 
firms one  important  fact  which  is  much  contested  by  the  defendants, 
which  is,  the  genuineness  of  the  signature  of  the  witness  A.  J.  McFar- 
lane  to  the  instrument.  An  attempt  was  made  to  prove,  and  it  is  ar- 
gued that  the  evidence  shows,  that  McFarlane  never  signed  the  mort- 
gage as  a  witness,  and  that  his  signature  thereto  is  a  forgery.  On 
this  point  we  will  only  make  the  remark,  that  we  are  satisfied  from 
the  evidence,  and  especially  by  an  inspection  of  the  writings  them- 
selves, of  the  authenticity  of  the  signature.  Whether  the  mortgage  was 
subscribed  by  the  witnesses  at  the  time  of  its  execution,  and  before  it 
was  left  at  the  ofifice  for  registry,  is  a  question  of  more  doubt,  upon 
the  evidence.  The  testimony  is  quite  strong  and  positive,  that  the  mort- 
gage had  no  subscribing  witnesses  when  it  was  recorded.  But  this  tes- 
timony is  contradicted ;  and,  considering  the  circumstances  attending 
the  execution  and  delivery  of  the  mortgage,  we  think  the  probabilities 
favor  the  inference  that  the  instrument  was  witnessed  when  it  was 
left  for  record.  According  to  this  view,  there  was  a  mistake  in  tran- 
scribing the  mortgage  upon  the  record,  by  omitting  the  names  of  the 
witnesses.  The  weight  of  the  evidence  to  our  minds  supports  this  in- 
ference or  conclusion.  It  is  to  be  observed  that  tlie  mortgage  is  per- 
fect and  fair  on  its  face,  showing  two  witnesses.  A  strong  presump- 
tion fairly  arises  from  the  instrument  itself,  that  it  was  witnessed  at 
the  time  of  its  execution.  This  presumption  is  not  overcome  nor  re- 
pelled by  the  testimony  offered  to  show  that  it  was  not  witnessed  at 
that  time. 

In  respect  to  the  degree  or  quantity  of  evidence  necessary  to  justify 
a  finding  that  the  subscribing  witnesses  signed"  the  instrument  after  it 
was  executed  and  recorded,  the  case  would  seem  to  come  within  the 
rule  laid  down  in  Kercheval  v.  Doty,  31  Wis.  478,  where  it  is  said: 
"The  proposition  being  to  set  aside  or  invalidate  a  written  contract 
by  evidence  of  a  far  less  certain  and  reliable  character  than  the  writ- 
ing itself,  the  greatest  clearness  and  certainty  of  proof  should  be  re- 
quired. It  is  like  the  cases  where  the  object  is  to  correct  or  reform  a 
deed  or  other  instrument  on  the  ground  of  mistake,  or  to  set  aside  or 
rescind  it  on  the  same  ground ;  where  the  rule  is,  that  the  fact  must 
be  established  by  clear  and  satisfactory  evidence."  The  testimony  of- 
fered to  show  that  the  mortgage  was  not  witnessed  when  executed, 
and  before  it  was  recorded,  falls  short  of  this  rule.  The  fact  is  not 
established  by  clear  and  conclusive  proof  that  it  was  not  witnessed 
when  executed.  It  would  serve  no  useful  purpose  to  go  into  a  detailed 
discussion  of  the  evidence  upon  this  point,  and  we  shall  not  do  so.  It 
-is  sufficient  to  say  that,  giving  to  the  testimony  offered  to  show  that 
the  mortgage  was  not  witnessed  before  it  was  received  for  record,  all 
the  weight  to  which  it  is  entitled,  it  fails  to  establish  that  fact  in  a  clear, 
satisfactory  manner. 


920  DERIVATIVE  TITLES  (Part  2 

Assuming,  then,  that  the  mortgage  was  witnessed  when  it  was  left 
at  the  office  of  the  register  to  be  recorded,  the  further  important  in- 
quiry arises  as  to  what  effect  must  be  given  to  the  record  as  construc- 
tive notice  to  subsequent  bona  fide  purchasers  for  value.  This  record 
was  in  this  state.  The  entry  of  the  mortgage  was  made  in  the  general 
index  book,  but  the  full  record  of  the  instrument  had  no  subscribing 
witnesses.  And  therefore  the  question  is,  Would  such  a  record  operate 
as  constructive  notice  to  subsequent  purchasers^  for  value,  independent 
of  any  actual  notice  ?  It  is  claimed  by  the  counsel  for  the  plaintiff  that 
the  record  does  and  should  so  operate,  notwithstanding  the  mistake 
in  the  registration  or  recording  of  the  instrument  in  extenso.  This 
presents  a  question  of  no  little  difficulty,  which  must  be  solved  by  the 
application  of  general  principles  of  law  to  the  provisions  of  our  statute. 

It  is  a  familiar  rule,  that  an  instrument  must  be  properly  executed 
and  acknowledged  so  as  to  entitle  it  to  record,  in  order  to  make  the 
registry  thereof  operate  as  constructive  notice  to  a  subsequent  pur- 
chaser. Says  Mr.  Justice  Story :  "The  doctrine  as  to  the  registration 
of  deeds  being  constructive  notice  to  all  subsequent  purchasers,  is  not 
to  be  understood  of  all  deeds  and  conveyances  which  may  be  de  facto 
registered,  but  of  such  only  as  are  authorized  and  required  by  law  to 
be  registered,  and  are  duly  registered  in  compliance  with  law.  If 
they  are  not  authorized  or  required  to  be  registered,  or  the  registry 
itself  is  not  in  compliance  with  the  law,  the  act  of  registration  is 
treated  as  a  mere  nullity:  and  then  the  subsequent  purchaser  is  af- 
fected only  by  such  actual  notice  as  would  amount  to  a  fraud."  1  Eq. 
Jur.  §  404.  See  also  Ely  v.  Wilcox,  20  Wis.  528,  91  Am.  Dec.  436; 
Fallass  v.  Pierce,  30  Wis.  444;  Lessee  of  Heister  v.  Fortner,  2  Bin. 
(Pa.)  40,  4  Am.  Dec.  417;  Shove  v.  Larsen,  22  Wis.  142,  and  cases 
cited  on  page  146. 

Under  our  statute,  among  other  requisites,  two  witnesses  are  essen- 
tial to  a  conveyance,  to  entitle  it  to  record.  The  statute  requires  every 
register  to  keep  a  general  index,  each  page  of  which  shall  be  divided 
into  eight  columns,  with  heads  to  the  respective  columns  as  prescribed ; 
and  the  duty  is  imposed  upon  the  register  to  make  correct  entries  in 
said  index  of  every  instrument  received  by  him  for  record,  under  the 
respective  and  appropriate  heads,  and  immediately  to  enter  in  the  ap- 
propriate column,  and  in  the  order  of  time  in  which  it  was  received,  the 
day  and  hour  of  reception ;  and  it  is  declared  that  the  instrument  "shall 
be  considered  as  recorded  at  tlie  time  so  noted."  R.  S.  c.  13,  §§  142, 
143.  In  Shove  v.  Larsen,  supra,  the  effect  of  this  index  containing 
correct  entries  of  matters  required  to  be  made  therein  was  considered. 
And  it  was  held  that  by  force  of  the  statute  it  operated  as  constructive 
notice  to  a  subsequent  purchaser.  In  that  case  the  index  contained  an 
accurate  description  of  the  land  mortgaged,  but,  in  transcribing  the 
mortgage  at  large  upon  the  records,  a  mistake  was  made  in  the  de- 
scription.   And  it  was  claimed  in  behalf  of  the  subsequent  purchaser, 


Ch.  8)    ^  PRIORITIES  921 

that  it  was  the  registration  of  the  instrument  at  large  which  alone 
amounted  to  constructive  notice.  But  this  construction  of  the  statute 
was  not  adopted,  the  court  holding  that  a  subsequent  purchaser  was 
bound  to  take  notice  of  the  entries  in  the  index,  which  the  law  re- 
quired the  register  to  make.  This  result  seemed  to  follow  necessarily 
from  the  language  of  the  statute,  which  declared  that  the  instrument 
should  be  considered  as  recorded  at  the  time  noted.  Time  might 
elapse  before  the  instrument  was  transcribed  at  large  on  the  record, 
or  it  might  be  lost  and  not  transcribed  at  all,  leaving  the  index  the 
only  record  of  its  contents.  And  the  manifest  intention  of  the  statute 
seemed  to  be  to  make  the  index  notice  of  all  proper  entries  from  its 
date,  and  also  of  the  instrument  itself  till  it  was  registered  in  full.  The 
further  consequence  would  seem  necessarily  to  result  from  this  view 
of  the  statute,  that  the  registration  of  the  conveyance  in  extenso  re- 
lates back  to  the  registration  in  the  index,  and  from  thence  there  is 
constructive  notice  of  the  contents  of  the  instrument.  The  doctrine 
of  Shove  V.  Larsen  was  approved  in  Hay  v.  Hill,  24  Wis.  235 ;  but 
the  court  refused  to  make  the  entry  in  the  index  in  that  case  operate 
as  constructive  notice,  because  upon  its  very  face  it  bore  conclusive  evi- 
dence that  it  was  not  made  at  its  date.  In  other  words,  the  rectitude 
and  integrity  of  the  index  were  successfully  impeached  by  the  index 
itself.    See  also  International  Life  Ins.  Co.  v.  Scales,  27  Wis.  '640. 

Where  there  is  nothing  upon  the  face  of  the  index  to  impeach  or 
throw  suspicion  upon  its  accuracy,  there  it  would  affect  a  subsequent 
purchaser  with  notice  of  those  facts  which  the  law  required  to  ap- 
pear therein.  Doubtless  a  still  further  consequence  follows  from  tliis 
construction  of  the  statute,  namely,  that  where  by  some  mistake  there 
is  a  discrepancy  between  the  proper  index  entries  and  the  instrument 
as  registered,  there  each  supplies  the  defects  of  the  other  in  the  con- 
structive notice  thereby  given.  That  is,  it  appears  to  be  the  intention 
of  the  statute  to  charge  the  subsequent  purchaser  constructively  with 
such  knowledge  as  the  proper  index  entries  afford,  as  well  as  with 
notice  of  those  facts  derived  from  the  registration  itself.  He  is  pre- 
sumed to  have  examined  the  whole  record,  and  is  aft'ected  with  notice 
of  what  it  contains.  But  when  the  instrument,  as  registered  in  full, 
appears  defective  in  some  material  and  essential  parts  which  are  not 
supplied  by  the  index  entries,  what  effect  then  must  be  given  the  rec- 
ord as  constructive  notice?  This  is  really  the  difficult  question  in  this 
case.  From  the  entries  in  the  index  it  would  not  appear  whether  the 
mortgage  was  witnessed  or  not.  The  presumption  from  the  mere  en- 
tries themselves  would  be,  that  it  was  witnessed  and  acknowledged  so 
as  to  entitle  it  to  record.  But  when  the  mortgage  as  registered  in 
full  was  examined,  it  would  be  found  that  it  had  no  witnesses  and  had 
no  business  on  the  records.  As  the  record  itself  is  only  constructive 
notice  of  its  contents,  it  is  difficult  to  perceive  how  it  can  go  beyond 
the  facts  appearing  upon  it,  and  charge  a  purchaser  constructively  with 
knowledge  of  a  fact  not  in  the  record. 


922  ■  DERIVATIVE  TITLES  (Part  2 

,  One  of  the  counsel  for  the  defendants  states  the  argument  on  this 
point  as  follows :  He  insists  and  claims  that  the  entries  in  the  index 
book,  so  far  as  they  indicated  that  the  mortgage  had  been  filed  for 
record,  indicated  also  that  the  mortgage  was  so  executed  as  to  entitle 
these  entries  of  it  to  be  made ;  but  that  when  the  full  record  was  looked 
at  for  all  the  particulars  of  the  mortgage,  and  perhaps  for  the  ex- 
press purpose  of  verifying  the  entries  in  the  index,  it  is  found  that 
the  apparent  assertion  by  the  index  entries  that  the  mortgage  was 
properly  executed  was  wholly  untrue,  and  that  the  mortgage  in  fact 
was  no  incumbrance.  The  fact,  as  truly  shown  to  exist  by  the  full 
record,  overcomes  and  destroys  the  false  assertion  as  to  the  fact  in 
the  index.  And  it  appearing  by  the  instrument  registered  that  it  was 
not  entitled  to  record,  both  the  registration  and  index  itself  cease  to 
affect  the  purchaser  with  constructive  notice. 

It  is  not  readily  perceived  wherein  this  argument  as  to  the  effect 
of  our  various  provisions  upon  the  subject  of  registration  is  unsound. 
The  question  mainly  depends  upon  the  construction  of  our  own  stat- 
utes. So  far  as  we  are  aware,  this  is  the  first  time  the  point  has  been 
presented  in  this  court  for  adjudication.  We  have  derived  but  little 
aid  from  the  decisions  in  other  states,  for  the  reason  that  few  of  them 
have  similar  statutory  provisions.  We  have  been  referred  by  the  coun- 
sel for  tlie  plaintiff  to  two  cases  in  Michigan,  Brown  v.  McCormick, 
28  Mich.  215,  and  Starkweather  v.  Martin,  Id.  472.  In  Brown  v. 
McCormick  the  effect  of  the  registry,  as  notice  to  subsequent  purchas- 
ers, was  made  to  turn  upon  the  curative  act  of  1861,  mentioned  in  the 
opinion.  In  Starkweather  v.  Martin  the  question  was,  how  far  the 
absence,  on  the  registry  of  a  deed,  of  any  m.ark  or  device  indicating  a 
seal,  or  of  any  statement  of  the  register  that  the  original  was  sealed, 
aft'ected  the  validity  of  the  record  entry  as  evidence  of  title.  The 
record  entry  of  the  deed  was  made  more  than  forty  years  before  the 
cause  was  decided,  by  the  proper  officer,  and  in  the  appropriate  place 
for  the  registry  of  deeds,  under  the  law  permitting  the  registry  of 
only  sealed  instruments ;  and  the  instrument  was  in  the  form  of  a  war- 
ranty deed,  purporting  to  be  acknowledged  and  dated  at  a  time  when 
it  was  the  common  and  lawful  course  to  seal  conveyances,  and  con- 
trary to  official  duty  to  take  the  acknowledgment  unless  the  convey- 
ance was  sealed,  and  where  the  conclusion,  attestation  clause,  and  cer- 
tificate of  acknowledgment  of  the  instrument  all  spoke  of  it  as  under 
seal.  The  court  said  that  these  facts  and  incidents  taken  together 
afforded  a  very  strong  presumption  that  the  original  was  sealed. 

The  doctrine  of  this  case  does  not  seem  to  have  a  very  strong  bear- 
ing upon  the  question  under  consideration.  It  may  be  said  that  it  was 
contrary  to  the  duty  of  the  register  to  record  the  mortgage  unless  it 
was  properly  acknowledged  and  witnessed,  and  that  a  presumption 
arises  that  he  would  not  have  done  so.  But  in  answer  to  this  it  may 
also  be  said  that  the  law  made  it  the  duty  of  the  register  to  record,  or 
cause  to  be  recorded  correctly,  all  instruments  authorized  by  law  to  be 


Ch.  8)  PRIORITIES  923 

recorded.  Section  140,  c.  13,  R.  S.  1858.  And  the  presumption  that 
he  performed  his  duty  in  recording  the  mortgage  correctly,  is  as  strong 
as  the  presumption  that  he  would  not  have  recorded  it  unless  it  was 
entitled  to  registry. 

In  Shove  v,  Larsen,  a  number  of  cases  are  referred  to  which  hold 
that  a  mistake  in  recording  a  deed,  or  recording  it  out  of  its  order, 
renders  the  registration  ineffectual  as  notice  to  subsequent  incum- 
brancers and  purchasers.  The  doctrine  of  those  cases  would  seem  to 
be  applicable  to  the  case  before  us.  The  registration  and  index  entries 
being  incomplete,  because  showing  that  the  mortgage  had  no  subscrib- 
ing witnesses,  constructive  notice  could  not  be  presumed  of  such  a 
record.  For  the  principle  "that  the  registry  is  notice  of  the  tenor  and 
effect  of  the  instrument  recorded,  only  as  it  appears  upon  that  record," 
fully  applies.  Shepherd  v.  Burkhalter,  13  Ga.  443,  58  Am.  Dec.  523. 
See,  in  addition  to  the  cases  cited  in  Shove  v.  Larsen ;  Brown  v.  Kirk- 
man,  1  Ohio  St.  116;  Stevens  v.  Hampton,  46  Mo.  404;  Bishop  v. 
Schneider,  46  Mo.  472,  2  Am.  Rep.  533;  Terrell  v.  Andrew  County, 
44  Mo.  309 ;  Frost  v.  Beekman,  1  Johns.  Ch,  (N.  Y.)  288. 

The  question  then  arises,  whether  the  evidence  shows  that  any  of 
the  defendants  were  affected  with  actual  notice  of  the  mortgage.  This 
question,  we  think,  must  be  answered  in  the  affirmative,  so  far  as  the 
defendants  Thomas  Maloy  and  Stanislaus  Bartosz  are  concerned. 

In  the  deposition  taken  on  his  own  behalf,  but  read  as  a  part  of  the 
plaintiff's  case,  Thomas  Maloy  distinctly  admits  that  he  had  heard, 
when  he  purchased  his  lots,  that  there  was  a  defective  railroad  mort- 
gage upon  them,  but  that  he  did  not  look  for  it,  because  his  abstract 
did  not  show  it.  It  is  claimed  by  one  of  the  counsel  for  the  defend- 
ants, that  this  related  to  the  Aiken  mortgage,  and  not  to  the  one  upon 
which  this  action  is  brought.  It  seems  to  us,  however,  that  this  is  a 
totally  inadmissible  construction  of  the  testimony.  He  most  certainly 
refers  to  the  mortgage  in  suit.  And  what  he  had  heard  about  there 
being  a  defective  railroad  mortgage  upon  the  property,  was  sufficient 
to  put  him  upon  inquiry.  Parker  v.  Kane,  4  Wis.  1,  65  Am.  Dec.  283. 
"What  is  sufficient  to  put  a  purchaser  upon  an  inquiry  is  good  notice; 
that  is,  where  a  man  has  sufficient  information  to  lead  him  to  a  fact, 
he  shall  be  deemed  conusant  of  it."  Sugden  on  Vendors  (9th  London 
Ed.)  p.  335.  "In  regard  to  the  inquiry  required  of  a  party,  it  should  be 
such  as  a  prudent  and  careful  man  would  exercise  in  his  own  business 
of  equal  importance.  Accordingly,  where  the  mortgagee  is  informed 
that  there  are  charges  affecting  the  estate,  and  is  cognizant  of  two  only, 
he  cannot  claim  to  be  a  purchaser  without  notice  of  other  charges,  be- 
cause he  believes  that  the  two,  which  satisfy  the  word  charges,  are  all 
the  charges  upon  it.  He  is  bound  to  inquire  whether  there  are  any 
others.  The  rule  with  respect  to  the  consequences  of  a  purchaser  ab- 
staining from  making  inquiries  does  not  depend  exclusively  upon  a 
fraudulent  motive ;  a  man  may  abstain  from  mere  heedlessness,  or 
stupidity,  and  be  none  the  less  responsible  for  the  consequences;  but 


924  DERIVATIVE  TITLES  (Part  2 

if  he  make  reasonable  inquiry,  and  is  deterred  by  a  false  answer,  he 
is  excusable,  if  it  be  of  a  character  to  delude  a  prudent  man."  1  Story's 
Eq.  Jur.  §  400  b ;  Jackson  v.  Van  Valkenburgh,  8  Cow.  (N.  Y.)  260. 
Independently  of  tlie  record,  Maloy  had  notice  of  the  existence  of  the 
mortgage,  or  had  a  knowledge  of  such  facts  as  to  call  for  further  in- 
quiry. He  cannot,  therefore,  be  protected  as  an  innocent  purchaser  for 
value. 

The  defendant  Bartosz  must  be  charged  with  notice  of  the  mortgage 
by  the  recitals  in  the  deed  from  Tenney  and  wife  to  his  immediate 
grantor.  He  was  present  when  that  deed  was  executed  and  delivered 
to  his  uncle.  He  testifies  that  he  did  not  know  whether  anything  was 
said  about  the  railroad  mortgage  at  that  time  or  not;  that  he  did  not 
understand  English  very  well.  The  purchase  was  really  made  by  his 
uncle  for  him.  And  whether  he  fully  understood  the  conversation  at 
the  time  about  incumbrances,  he  must  be  chargeable  with  notice  of  what 
appears  in  his  chain  of  title.  This  clause  was  in  the  deed  to  his  uncle : 
"Said  premises  are  free  and  clear  from  all  incumbrances  except  a  mort- 
gage to  the  La  Crosse  Railroad  Co.,  which  I  am  to  save  said  Bartosz 
harmless  from."  The  general  rule  upon  this  subject  is,  "that  where  a 
purchaser  cannot  make  out  a  title  but  by  a  deed  which  leads  him  to 
another  fact,  he  will  be  presumed  to  have  knowledge  of  the  fact." 
The  following  authorities  are  very  clear  and  decisive  upon  that  point: 
Fitzhugh  V.  Barnard,  12  Mich.  105;  Case  v.  Erwin,  18  Alich.  434; 
Baker  v.  Mather,  25  Mich.  51;  Howard  Insurance  Co.  v.  Halsey,  8 
N.  Y.  271,  59  Am.  Dec.  478;  Frost  v.  Beekman,  supra,  1  Johns.  Ch. 
(N.  Y.)  298 ;  Gilbert  v.  Peteler,  38  N.  Y.  165,  97  Am.  Dec.  785 ;  Acer 
V.  Westcott,  46  N.  Y.  384,  7  Am.  Rep.  355 ;  Coles  v.  Sims,  5  De  Gex, 
M.  &  G.  1.  The  clause  in  the  deed  referred  to  the  mortgage  as  an  ex- 
isting incumbrance,  and  he  cannot  now  in  good  faith  claim  tliat  it  is 
not  a  lien  upon  his  property. 

The  counsel  for  the  plaintiff  claims  that  the  defendant  McLindon 
had  actual  knowledge  of  the  existence  of  the  mortgage.  It  is  true, 
he  testified  that  when  he  purchased,  he  knew  by  report  that  there  was 
a  railroad  mortgage  upon  the  property,  but  he  says  that  the  report 
stated  that  the  mortgage  was  void.  Were  he  not  protected  by  another 
principle,  he  could  not  certainly  be  regarded  as  a  bona  fide  purchaser. 
But  he  purchased  from  S.  S.  Johnson,  or  claims  through  Johnson,  in 
whom  the  title  stood  free  from  any  taint.  For  the  rule  is  well  settled, 
that  a  purchaser  affected  with  notice  may  protect  himself  by  purchas- 
ing of  another  who  is  a  bona  fide  purchaser  for  a  valuable  considera- 
tion. For  a  similar  reason,  if  a  person  who  has  notice  sells  to  another 
who  has  no  notice  and  is  a  bona  fide  purchaser  for  a  valuable  consid- 
eration, the  latter  may  protect  his  title,  although  it  was  affected  with 
the  equity  arising  from  notice  in  the  hands  of  the  person  from  whom 
he  derived  it.  Mr.  Justice  Story  says  this  doctrine,  in  both  of  its 
branches,  has  been  settled  for  nearly  a  century  and  a  half  in  England. 
1  Eq.  Jur.  §  410.    He  states  an  exception  to  the  rule,  which  was  recog- 


Ch.  8)  PRIORITIES  925 

nized  and  enforced  in  Ely  v.  Wilcox,  26  Wis.  91,  where  the  estate  be- 
came revested  in  the  original  fraudulent  grantee,  when  the  original 
equity 'was  held  to  reattach  to  it.  There  is  no  pretense  that  McLindon 
comes  within  the  exception;  and  as  a  bona  fide  purchase  of  an  estate, 
for  a  valuable  consideration,  purges  away  the  equity  from  the  estate  in 
the  hands  of  all  persons  who  derive  title  under  it,  he  is  protected.  It 
is  said  that  it  does  not  appear  that  Johnson's  title  was  derived  from 
the  common  source.  As  we  understand  the  bill  of  exceptions,  an  ab- 
stract was  oftereti  in  evidence  to  show  title  from  Dunn,  by  various 
intermediate  conveyances,  to  the  defendant,  which  was  ruled  out  on 
the  plaintiff's  objection.  But  perhaps  it  is  a  better  answer  to  the  objec- 
tion to  say  that  the  plaintiff  has  made  the  defendants  parties  under  the 
general  allegation  that  they  claim  some  interest  in  or  title  to  the  mort- 
gaged premises,  which  was  subject  to  the  mortgage.  This  allegation 
implies  that  this  interest  was  not  adverse,  but  was  derived  from  Dunn, 
though  subsequent  in  date  and  inferior  in  right  to  the  plaintiff's  mort- 
gage. 

It  was  further  insisted  that  the  evidence  showed  that  the  defendant 
Mary  Maloy  had  actual  notice  of  the  mortgage.  We  do  not  think  this 
position  is  sustained  by  the  testimony.  It  is  attempted  to  charge  her 
with  the  same  actual  knowledge  her  husband  had,  because  he  aided  her 
when  she  made  her  purchase  of  Martin  Maloy.  It  does  not  appear  that 
anything  was  said  at  this  time  about  the  railroad  mortgage,  or  that  she 
ever  had  any  notice  of  it.  It  does  not  appear,  even,  that  he  was  acting 
as  her  agent  in  any  legal  sense;  and  besides,  if  he  were,  his  knowledge  ' 
acquired  at  another  time,  when  not  engaged  in  her  business,  ought  not 
to  be  imputed  to  her.  Notice,  to  bind  the  principal,  should  be  brought 
home  to  the  agent  while  engaged  in  the  business  or  negotiation  of  the 
principal,  and  when  it  would  be  a  breach  of  trust  in  the  former  not  to 
communicate  the  knowledge  to  the  latter.  1  Story's  Eq.  Jur.  §  408, 
and  cases  cited  in  note  1.  The  evidence  fails  to  bring  her  within  that 
rule. 

A  number  of  other  questions  were  discussed  upon  the  argument ;  but 
we  believe  these  observations  dispose  of  all  the  more  important  ones. 

The  judgment  of  the  circuit  court  as  to  the  defendants  Thomas 
Maloy  and  Stanislaus  Bartosz  must  be  reversed,  and  the  cause  remand- 
ed for  further  proceedings  in  accordance  with  this  decision. 

By  The  Court.    It  is  so  oi'dered.^^ 

33  Parret  v.  Shaubhut,  5  Minn.  32.3  (Gil.  258),  80  Am.  Dec.  424  (1861),  ace. 

The  matter  of  acknowledgment,  witnessing,  etc.,  as  prerequisites  to  effective 
recording,  is  dependent  entirely  upon  the  statutes  of  the  state  where  the  land 
is.    The  student  should  consult  the  statutes. 


926  DERIVATIVE  TITLES  (Part  2 

FROST  V.  BEEKMAN. 
(Court  of  Chancery-  of  New  Tork,  1S14.    1  Johns.  Ch.  2SS.) 

The  Chancellor.^'  *  *  *  Another,  and  a  more  interesting 
question,  is,  respecting  the  extent  and  effect  of  the  registry  of  the  de- 
fendant's mortgage,  as  notice  to  purchasers.  It  was  a  mortgage  for 
$3,000,  and,  by  mistake,  the  registry  was  only  for  $300.  This  mistake 
is  the  whole  cause  of  the  controversy. 

The  mortgage  act  of  the  sess.  24,  ch,  156,  declared,  among  other 
things,  that  the  registry  of  a  mortgage  should  contain,  not,  indeed,  the 
mortgage  at  large,  but  the  essential  parts  of  the  mortgage,  and,  among 
other  specified  parts,  "the  mortgage  money,  and  the  time  or  times  when 
payable."  To  this  register  all  persons  whomsoever,  at  proper  seasons, 
are  at  liberty  to  have  recourse ;  and  the  act  declared  that  mortgages 
were  to  have  preference,  as  to  each  other,  according  to  the  times  of 
registry,  and  that  "no  mortgage  should  defeat  or  prejudice  the  title 
of  any  bona  fide  purchaser,  unless  the  same  should  have  been  duly 
registered,  as  aforesaid."  This  registry  is  notice  of  the  mortgage  to  all 
subsequent  purchasers  and  mortgagees ;  and  so  the  act  was  construed, 
and  the  law  declared,  by  the  court  of  errors,  in  the  case  of  Johnson  v. 
Stagg,  2  Johns.  510.  The  English  authorities,  on  this  point,  do  not, 
therefore,  govern  the  case.  The  language  of  those  authorities,  un- 
doubtedly, is,  that  the  registry  is  not  notice,  though  that  doctrine  is 
much  questioned,  and  the  point  seems  still  to  be  floating  and  unsettled. 
Bedford  v.  Backhouse,  3  Eq.  Cas.  Abr.  615,  pi.  12;  Wrightson  v.  Hud- 
son, Id.  609,  pi.  7;  Morecock  v.  Dickins,  Amb.  678;  Latouche  v.  Dun- 
sany,  1  Schoale  &  Lefroy,  157;  Sugden  (3d  Lond.  Ed.)  524-7;  Com. 
Dig.  tit.  Til,  Deed,  ch.  21,  §  11.  The  only  question  with  us  is,  when, 
and  to  what  extent,  is  the  registry  notice?  Is  it  notice  of  a  mortgage 
unduly  registered?  or  is  it  notice  beyond  the  contents  of  the  registry? 

The  true  construction  of  the  act  appears  to  be  that  the  registry  is 
notice  of  the  contents  of  it,  and  no  more,  and  that  the  purchaser  is 
not  to  be  charged  with  notice  of  the  contents  of  the  mortgage,  any  fur- 
ther than  they  may  be  contained  in  the  registry.  The  purchaser  is  not 
bound  to  attend  to  the  correctness  of  the  registry.  It  is  the  business 
of  the  mortgagee,  and  if  a  mistake  occurs  to  his  prejudice,  the  conse- 
quences of  it  lie  between  him  and  the  clerk,  and  not  between  him  and 
the  bona  fide  purchaser.  The  act,  in  providing  that  all  persons  might 
have  recourse  to  the  registry,  intended  that  as  the  correct  and  sufficient 
source  of  information ;  and  it  would  be  a  doctrine  productive  of  im- 
mense mischief  to  oblige  the  purchaser  to  look,  at  his  peril,  to  the  con- 
tents of  every  mortgage,  and  to  be  bound  by  them,  when  different  from 
the  contents,  as  declared  in  the  registry.  The  registry  might  prove  only 
a  snare  to  the  purchaser,  and  no  person  could  be  safe  in  his  purchase, 

3  4  Only  that  part  of  the  opinion  dealing  with  the  matter  of  re^stry  is 
printed. 


Ch.  8)  PRIORITIES  927 

without  hunting  out  and  inspecting  the  original  mortgage,  a  task  of 
great  toil  and  difficulty.  I  am  satisfied  that  this  was  not  the  intention, 
as  it  certainly  is  not  the  sound  policy,  of  the  statute;  nor  is  it  repug- 
nant to  the  doctrine  contained  in  the  books,  that  notice  to  a  purchaser, 
of  the  existence  of  a  lease,  is  notice  of  its  contents.  Taylor  v.  Stib- 
bert,  2  Ves.  Jun.  437;  Hiern  v.  Mill,  13  Ves.  Jun.  118,  120;  Hall  v. 
Smith,  14  Ves.  Jun.  426.  In  that  case,  the  party  is  put  upon  inquiry, 
and  he  must  make  it,  or  abide  the  consequences.  The  decision,  in  Jack- 
son V.  Neely,  10  Johns.  374,  was  made  upon  the  same  principle;  and  it 
was  held  that  the  recital  in  a  deed  of  a  letter  of  attorney,  by  which  it 
was  made,  was  notice  to  the  purchaser  of  the  existence  of  such  a  power. 
But  here  the  statute  did  not  mean  to  put  the  party  upon  further  in- 
quiry. The  registry  was  intended  to  contain,  within  itself,  all  the 
knowledge  of  the  mortgage  requisite  for  the  purchaser's  safety. 

The  question  does  not  necessarily  arise,  in  this  case,  how  far  the 
unauthorized  registry  of  a  mortgage,  as  one  made,  for  instance,  with- 
out any  previous  legal  proof,  or  acknowledgment,  would  charge  a  pur- 
chaser with  notice  of  the  mortgage.  The  better  opinion,  in  the  books, 
seems  to  be,  that  it  would  not  be  notice,  and  that  equity  will  not  inter- 
fere in  favour  of  an  incumbrancer,  when  he  has  not  seen  that  his  mort- 
gage was  duly  registered.  Sugden's  Law  of  Vend.  527;  1  Schoale  & 
Lefroy,  157;  Heister  v.  Fortner,  2  Bin.  (Pa.)  40,  4  Am.  Dec.  417.  But 
here  every  thing  was  done  that  could  have  been  previously  required  of 
the  mortgagee.  The  mortgage  was  duly  presented  for  registry,  and 
he  was  not  bound  to  inspect  and  correct  the  record.  This  was  the 
exclusive  business  and  duty  of  the  clerk,  and  there  is  no  reason  why 
the  registry  should  not  operate  as  notice,  to  the  amount  of  the  sum 
mentioned  therein  ;  and,  indeed,  so  far  the  obligation  of  the  registry  is 
admitted  by  the  bill. 

I  conclude,  therefore,  that  the  registry  was  notice  to  purchasers,  to 
the  amount,  and  only  to  the  amount,  of  the  sum  specified  in  the  reg- 
istry.    *     *     * 


TERRELL  v.  ANDREW  COUNTY. 

(Supreme  Court  of  Missouri,  1809.    44  Wo.  300.) 

Wagner,  J.  The  argument  in  reference  to  the  execution  of  the 
power  contained  in  the  mortgage,  and  the  frauds  between  the  Terrells 
in  the  purchase  of  the  property  at  the  mortgagee's  sale,  is  beside  and 
irrelevant  to  any  issue  in  the  case.  If  the  facts  alleged  are  true,  they 
may  have  furnished  sufficient  reason  for  Holt,  the  mortgagor,  to  move 
to  set  aside  the  sale ;  but  in  the  absence  of  any  complaint  on  his  part, 
the  defendant  can  not  make  the  objection  for  him.  There  is  but  one 
question  in  this  case  to  be  determined.  It  seems  that  Andrew  county 
loaned  to  one  Holt  the  sum  of  four  hundred  dollars  belonging  to  the 
common-school  fund,  for  the  securing  of  which  he  gave  personal  se- 


928  DERIVATIVE  TITLES  (Part  2 

curity,  and  also  executed  a  mortgage  on  a  lot  owned  by  him  in  the  city 
of  Savannah.  The  county  duly  deposited  the  deed  for  record  with  the 
recorder  of  the  county,  and  that  officer,  in  recording  the  same,  by  mis- 
take inserted  two  hundred  dollars  in  the  record  instead  of  four  hun- 
dred dollars,  showing  an  encumbrance  for  the  former  instead  of  the 
latter  sum.  After  the  mortgage  was  recorded,  Holt  applied  to  one  of 
the  plaintiffs  for  a  loan  of  money,  and  offered  to  secure  him  by  mort- 
gage liens  on  real  estate,  the  lot  mortgaged  to  the  county  being  among 
the  property.  On  examination,  the  record  showed  a  mortgage  for  two 
hundred  dollars;  the  money  was  loaned,  and  a  junior  mortgage  given 
subject  to  the  prior  lien.  Subsequently  the  county  ordered  the  lot  sold 
in  default  of  payment,  claiming  the  full  amount  of  four  hundred  dol- 
lars, together  with  accrued  interest.  The  plaintiff  paid  the  two  hun- 
dred dollars,  with  interest  tliereon,  and  proceeded  to  enjoin  the  col- 
lection of  the  remainder. 

The  Court  of  Common  Pleas  in  Buchanan  county,  to  which  the  cause 
was  removed  by  change  of  venue,  rendered  judgment  of  perpetual  in- 
junction, and  this  judgment  was  reversed  in  the  District  Court. 

The  only  question,  therefore,  is  whether,  under  the  law,  the  record 
imparted  notice  for  any  greater  amount  than  two  hundred  dollars.  It 
is  not  pretended  that,  at  the  time  Terrell  loaned  the  money  and  took  his 
mortgage,  he  had  any  other  notice  of  the  county's  claim  than  that  dis- 
closed by  the  record. 

It  is  contended  here  on  behalf  of  the  county  that,  according  to  our 
statute,  when  a  person  files  with  the  recorder  an  instrument,  it  imparts 
notice  of  its  real  contents  to  all  subsequent  purchasers,  regardless  of  any 
mistake  that  the  recorder  may  commit  in  placing  it  on  record ;  that  the 
statute  provides  that  every  instrument  in  writing,  certified  and  recorded 
in  the  manner  prescribed,  shall,  from  the  time  of  filing  the  same  with 
the  recorder  for  record,  impart  notice  to  all  persons  of  the  contents 
thereof ;  and  all  subsequent  purchasers  and  mortgagees  shall  be  deemed, 
in  law  and  equity,  to  purchase  witli  notice.    R.  S.  1855,  p.  364,  §  41. 

According  to  the  literal  interpretation  of  the  section,  no  notice  is  im- 
parted till  the  instrument  is  actually  placed  on  record,  and  then  it  re- 
lates back  to  the  time  of  filing.  It  was,  no  doubt,  the  intention  of  the 
Legislature  to  give  a  person  filing  an  instrument  or  conveyance  all  the 
benefit  of  his  diligence ;  and  when  he  deposits  the  same  with  the  re- 
corder, and  has  it  placed  on  file,  he  has  done  all  that  he  can  do,  and  has 
complied  with  the  requirement  of  the  law.  From  that  time  it  will  give 
full  notice  to  all  subsequent  purchasers  and  encumbrancers. 

A  person,  in  the  examination  of  titles,  first  searches  the  records; 
and  if  he  finds  nothing  there,  he  looks  to  see  if  any  instruments  are 
filed  and  not  recorded.  If  nothing  is  found,  and  he  has  no  actual  no- 
tice, so  far  as  he  is  concerned  the  land  is  unencumbered.  If  he  finds 
a  conveyance,  he  goes  no  further ;  he  never  institutes  an  inquiry  to  find 
whether  the  deed  is  correctly  recorded  or  the  contents  literally  tran- 
scribed.    Indeed,  to  attempt  to  prosecute  such  a  search  would  be  idle 


Ch.  8)  PRIORITIES  X  929 

and  nugatory.  Grantees  do  not  usually  leave  their  deeds  lying  in  the 
recorder's  office  for  the  inspection  of  the  public.  After  they  are  re- 
corded, they  take  them  out  and  keep  them  in  their  possession.  In  a 
large  majority  of  cases  it  would  not  only  entail  expense  and  trouble, 
but  it  would  be  useless,  to  attempt  to  get  access  to  the  original  papers. 

Hard  and  uncertain  would  be  the  fate  of  subsequent  purchasers  if 
they  could  not  rely  upon  the  records,  but  must  be  under  the  necessity, 
before  they  act,  of  tracing  up  the  original  deed  to  see  that  it  is  correctly 
recorded.  The  statute  says-  that  when  the  deed  is  certified  and  recorded 
it  shall  impart  notice  of  the  contents  from  the  time  of  filing.  Cer- 
tainly ;  but  this  is  to  be  understood  in  the  sense  that  the  deed  is  rightly 
recorded,  and  the  contents  correctly  spread  upon  the  record.  It  never 
was  intended  to  impose  upon  the  purchaser  the  burden  of  entering 
into  a  long  and  laborious  search  to  find  out  whether  the  recorder  had 
faithfully  performed  his  duty.  The  obligation  of  giving  the  notice 
rests  on  the  party  holding  the  title.  If  he  fails  in  his  duty,  he  must 
suffer  the  consequences.  If  his  duty  is  but  imperfectly  performed,  he 
can  not  claim  all  the  advantages  and  lay  the  fault  at  the  door  of  an  in- 
nocent purchaser. 

But  it  is  said  the  recorder  is  required  to  give  bond  for  the  faithful 
performance  of  all  the  duties  enjoined  on  him  by  law,  and  that  this 
is  for  the  benefit  of  the  subsequent  purchaser  who  is  injured  by  his 
dereliction,  and  that  he  must  pursue  his  remedy  against  the  recorder. 
This  bond  is  for  the  benefit  of  any  and  every  person  who  may  suffer 
injury  by  reason  of  the  recorder's  neglect  to  faithfully  discharge  the 
duties  of  his  office.  It  was  not  Terrell,  in  this  case,  who  was  injured; 
it  was  Andrew  county.  The  county  deposited  the  deeds  with  the  re- 
corder, and  paid  him  for  recording  it.  Through  his  negligence  and 
inattention  he  did  his  work  inaccurately,  so  that  it  imparted  notice  for 
only  half  the  consideration,  and  the  county  suffered  loss  and  injury  in 
consequence  thereof.  The  privity  springs  and  exists  between  the  coun- 
ty and  the  recorder,  and  the  count}'  is  the  proper  party  to  proceed 
against  him  to  recover  the  loss. 

The  judgment  of  the  District  Court  must  be  reversed.  The  other 
judges  concur. 


MANGOLD  V.  BARLOW. 

(Supreme  Court  of  Alississippi,  1884.     61  Miss.  593,  48  Am.  Eep.  84.) 

Ballou  and  wife  executed  a  deed  of  trust  to  Faler  &  Co.  on  19th  of 
February,  1877,  on  the  land  in  controversy,  and  on  that  day  it  was 
lodged  with  the  clerk  of  the  chancery  court  for  record.  It  was  recorded 
but  the  clerk  misdescribed  the  land,  giving  a  different  quarter  section 
from  that  described  in  the  deed.  Three  years  afterward  the  same 
grantors  executed  a  deed  of  trust  on  the  same  land  to  H.  H.  Barlow, 
Aig.Peop. — 59 


930  DERIVATIVE  TITLES  (Part  2 

appellee,  which  was  duly  recorded  on  the  day  of  Its  execution,  27th 
January,  18S0.  There  was  no  actual  notice  of  the  first  deed  or  any-, 
thing  to  .put  the  last  grantee  on  inquiry.  In  a  contest  between  the  prior 
and  subsequent  grantees  the  court  below  rendered  judgment  for  the 
latter,  and  from  this  judgment  an  appeal  is  taken. 

Campbell,  C.  J.  The  question  is,  who  shall  suffer  loss  from  an  er- 
ror of  the  clerk  in  recording  a  deed  duly  acknowledged  and  lodged  with 
him  for  record?  Does  the  grantee  acquit  himself  fully  of  all  duty 
when  he  delivers  the  deed  to  the  proper  officer  for  record,  or  is  it  his 
duty  to  see  that  the  instrument  is  properly  recorded?  And  if  a  mistake 
is  made  in  recording  by  which  a  subsequent  grantee  is  misled  and  in- 
jured, whose  claim  shall  prevail,  that  of  the  first  grantee,  who  relied 
on  the  officer  to  do  his  duty,  or  of  the  second  grantee,  who,  in  the  faith 
that  the  record  is  true,  acts  upon  it?  Shall  the  deed  prevail  or  the 
record  of  it?  There  is  great  contrariety  of  opinion  on  this  subject  in 
other  States.  The  courts  of  New  York,  Ohio,  Vermont,  Michigan, 
Iowa,  Wisconsin,  Minnesota,  Georgia,  Tennessee,  ^Missouri,  and  CaH- 
fornia  hold  that  subsequent  purchasers  are  bound  only  by  what  the 
record  shows,  while  those  of  Alabama,  Illinois,  Pennsylvania,  Connec- 
ticut, Rhode  Island,  Virginia,  and  Texas  hold  tliat  a  grantee  who  lodges 
the  deed  for  record  has  done  all  that  is  required  of  him,  and  that  the 
deed  must  prevail  although  a  mistake  is  made  in  recording  it;  that 
from  the  time  of  its  delivery  to  the  proper  officer  for  record  it  is  con- 
sidered as  recorded,  and  for  any  error  in  recording  by  which  a  subse- 
quent purchaser  is  misled  and  injured,  he  must  look  to  the  clerk  for 
redress  and  cannot  throw  the  loss  on  the  first  grantee,  who  did  all  he 
was  required  to  do  and  should  not  suffer  from  the  negligence  of  the 
clerk.  The  decided  weight  of  authority  seems  to  be  in  favor  of  the 
view  that  the  record  may  be  relied  on  by  a  subsequent  purchaser,  and 
that  he  cannot  be  aft'ected  by  a  deed  not  truly  recorded.  Frost  v. 
Beekman,  1  Johns.  Ch.  (N.  Y.)  288;  Beekman  v.  Frost,  18  Johns.  (N. 
Y.)  544,  9  Am.  Dec.  246;  Barnard  v.  Campau,  29  Mich.  162;  Sawyer 
V.  Adams,  8  Vt.  172,  30  Am.  Dec.  459;  Sanger  v.  Craigue,  10  Vt.  555 ; 
Terrell  v.  Andrew  County,  44  Mo.  309;  Lally  v.  Holland,  1  Swan 
(Tenn.)  396;  Baldwin  v.  Marshall,  2  Humph.  (Tenn.)  116;  Chamber- 
lain V.  Bell,  7  Cal.  292,  68  Am.  Dec.  260 ;  Shepherd  v.  Burkhalter,  13 
Ga.  443,  58  Am.  Dec.  523 ;  Miller  v.  Bradford,  12  Iowa,  14 ;  Brydon  v. 
Campbell,  40  Md.  331;  Pringle  v.  Dunn,  37  Wis.  449,  19  Am.  Rep. 
772.  For  the  other  view,  are  Franklin  v.  Cannon,  1  Root  (Conn.)  500; 
Judd  V.  Woodruff,  2  Root  (Conn.)  298 ;  :\IcGregor  v.  Flail,  3  Stew.  & 
P.  (Ala.)  397 ;  Mims  v.  Mims,  35  Ala.  23 ;  Nichols  v.  Reynolds,  1  R.  I. 
30,  36  Am.  Dec.  238 ;  Merrick  v.  Wallace,  19  111.  486 ;  Throckmorton  v. 
Price,  28  Tex.  605,  91  Am.  Dec.  334;  Glading  v.  Frick,  88  Pa.  460; 
Clader  v.  Thomas,  89  Pa.  343 ;  Beverley  v.  Ellis,  1  Rand.  (Va.)  102. 

After  the  most  careful  consideration  we  range  ourselves  with  the 
minority,  and  hold  that  a  grantee  fully  acquits  himself  of  all  duty  im- 
posed by  law  when  he  lodges  the  instrument  with  the  proper  officer 


Ch.  S)  PRIORITIES  031 

for  record,  and  from  that  time  it  is  notice  to  subsequent  purchasers  and 
creditors  of  what  it  contains,  and  not  of  what  the  recording  officers 
may  make  it  to  show  on  the  record.  The  clerk  is  not  the  agent  of  the 
grantee  and  he  is  not  responsible  for  his  blunders.  He  has  as  much 
right  to  rely  on  the  fidelity  of  the  officer  as  has  a  subsequent  purchaser. 
While  his  deed  is  in  the  clerk's  office  it  shows  its  contents,  and  when  it 
is  withdrawn  from  the  office  it  has  annexed  a  certificate  by  the  officer 
that  it  has  been  duly  recorded.  Either  this  may  be  relied  on,  or  the 
grantee  must  compare  the  deed  with  the  record  to  see  if  it  is  truly 
transcribed.  This  would  be  an  unreasonable  requirement.  The  first 
grantee  having  done  all  that  he  is  required  to  do  to  give  notice  of  the 
instrument  may  safely  repose  on  the  presumption  that  the  recording 
officer  has  done  his  duty,  and  if  subsequent  purchasers  or  creditors 
suffer  injury  from  official  negligence  or  misconduct,  they  must  seek 
redress  from  the  party  at  fault,  and  cannot  visit  the  loss  on  him  who 
has  done  no  wrong.  In  announcing  this  view  we  follow  the  language 
of  our  statute  and  the  rule  most  consonant  with  justice  and  sound 
policy.  The  statutes  declare  that  certain  instruments  shall  be  "void  as 
to  all  creditors  and  subsequent  purchasers  for  valuable  consideration, 
without  notice,  unless  they  shall  be  acknowledged  or  proved  and  lodged 
with  the  clerk  of  the  chancery  court  of  the  proper  county  to  be  record- 
ed." The  grantee  is  not  required  to  record  the  instrument  or  to  see 
that  the  officer  does  his  duty.  All  that  is  imposed  on  the  grantee  is 
that  the  instrument  shall  be  acknowledged  or  proved  and  lodged  with 
the  clerk  of  the  chancery  court  of  the  proper  county.  There  his  duty 
ends.  That  done,  his  deed  is  not  to  be  void  as  to  subsequent  purchasers 
or  creditors.  That  is  a  performance  of  the  condition  without  which 
it  would  be  void,  and  the  condition  having  been  performed  the  instru- 
ment is  discharged  of  all  conditions  and  is  thenceforth  valid  as  to  all. 
Tlie  State  has  established  depositories  for  instruments  to  be  recorded 
and  has  prescribed  the  duties  of  recording  officers.  This  is  for  the 
benefit  and  protection  of  subsequent  purchasers  from  a  grantor  and  his 
creditors.  A  grantee  must  have  his  deed  put  in  condition  for  being  re- 
corded and  must  lodge  it  at  the  proper  place  for  record.  That  is  all 
that  is  required  of  him.  He  is  not  a  guarantor  of  compliance  by  the 
recording  officer  with  the  law  as  to  recording.  It  is  not  for  his  benefit 
that  the  recording  is  to  be  done,  but  for  others.  The  State  has  under- 
taken to  have  the  recording  done,  and  if  one  suffers  from  the  negli- 
gence of  the  officer  he  must  seek  redress  from  the  officer. 

The  judgment  of  the  circuit  court  is  reversed  and  the  cause  re- 
manded for  a' new  trial. 


932  DERIVATIVE  TITLES  (Part  2 


PROUTY  V.  MARSHALL. 

(Supreme  Court  of  Pennsylvania,  1900.     225  Pa.  570,  74  Atl.  550,  25  L.  H.  A. 

[N.  S.]  1211.) 

Potter,  J.  The  precise  question  here  presented  for  determination 
is  whether,  when  a  mortgage  is  defectively  recorded,  and  wrongly  in- 
dexed, by  inserting  a  wrong  initial,  in  entering  the  name  of  the  mort- 
gagor, the  correct  name  being  entirely  omitted  from  the  record,  a  pur- 
chaser of  the  mortgaged  premises,  without  actual  notice,  is  chargeable 
with  notice  of  such  mortgage,  and  as  terre-tenant  of  the  premises,  sub- 
ject to  its  enforcement  against  him. 

It  appears  from  the  record,  that  on  January  20,  1900,  L.  J.  Marshall 
executed  and  delivered  to  Agnes  Prouty  a  purchase  money  mortgage, 
secured  upon  premises  in  Dubois  borough,  Clearfield  county.  On  Feb- 
ruary 6,  1900,  the  mortgage  was  delivered  for  record  by  the  mortgagee 
to  the  recorder  of  deeds  for  Clearfield  county,  and  the  fee  for  recording 
paid  to  him.  The  recorder  subsequently  returned  the  mortgage  to  the 
mortgagee,  with  his  certificate  indorsed  upon  it,  certifying  that  it  had 
been  recorded. 

The  recorder,  however,  had  not  recorded  the  mortgage  as  executed 
by  L.  J.  Marshall,  and  had  not  indexed  it  under  the  name  of  L.  J.  Mar- 
shall. But  upon  the  record  the  name  of  the  mortgagor,  wherever  it 
appeared,  was  written  "S.  J.  Marshall,"  and  the  only  name  entered  on 
the  indexes  was  that  of  "S.  J.  Marshall." 

On  August  25,  1903,  A.  A.  La  Rue  purchased  the  mortgaged  prem- 
ises and  the  same  were  conveyed  to  him  by  Marshall.  La  Rue  had  no 
actual  notice  of  the  mortgage  to  Prouty.  On  July  10,  1906,  a  scire 
facias  was  issued  on  the  mortgage  against  Marshall  as  mortgagor  and 
La  Rue  as  terre-tenant,  to  recover  a  balance  claimed  to  be  due  the 
mortgagee.  La  Rue,  the  terre-tenant,  defended  upon  the  ground  that 
neither  the  mortgage  books  nor  the  mortgage  indexes  in  the  recorder's 
office  showed  any  mortgage  executed  by  L.  J.  Marshall  or  contained 
any  record  of  the  mortgage  sued  on. 

Upon  the  trial  in  the  court  of  common  pleas,  the  trial  judge  directed 
a  verdict  for  the  plaintiff,  reserving  a  point  requesting  binding  instruc- 
tions for  the  defendants.  The  court  subsequently  overruled  a  motion 
for  judgment  on  the  reserved  point  non  obstante  veredicto,  and  entered 
judgment  on  the  verdict.  The  terre-tenant  appealed  to  the  Superior 
Court,  which  affirmed  the  judgment  of  the  court  below.  The  present 
appeal  is  by  the  terre-tenant  from  the  decree  of  the  Superior  Court, 
which  is  assigned  for  error.^"^ 

An  examination  of  the  cases  cited  in  the  opinion  of  the  Superior 
Court,  shows  that  none  of  them  presented  facts  similar  to  those  in  the 
case  at  bar,  and  in  none  of  them  was  the  exact  question  here  presented, 

3r.  The  case  below  is  reported  in  30  Pa.  Super.  Ct  527. 


Ch.  8)  PRIORITIES  •  933 

considered.  Thus  in  Speer  v.  Evans,  47  Pa.  141,  the  case  turned  upon 
the  question  of  actual  notice,  and  it  was  held  that  actual  notice  is 
equivalent  to  the  constructive  notice  given  by  the  mortgage  index. 
In  Brooke's  Appeal,  64  Pa.  127,  the  point  decided  was,  that,  under  the 
Act  of  May  28,  1775  [1715],  1  Smith's  Laws,  p.  94,  a  mortgage  has 
priority  of  lien  from  the  moment  when  it  is  left  with  the  recorder  for 
record,  not  from  the  time  when  it  is  actually  recorded.  In  Schell  v. 
Stein,  76  Pa.  398,  18  Am.  Rep.  416,  the  instrument  was  properly  re- 
corded, but  not  indexed,  in  a  general  index.  It  was  held  that  as  the 
law  then  stood,  the  recorder  of  deeds  was  not  required  by  the  Act  of 
March  29,  1827  (P.  L.  154),  to  keep  a  general  index  of  all  the  deed 
and  mortgage  books  in  his  office,  but  only  to  keep  an  index  for  each 
book.  The  law  in  this  respect  has  been  changed  by  the  Act  of  March 
18,  1875  (P.  L.  32),  and  general  indexes  are  now  required  to  be  kept, 
and  failure  to  index  renders  the  record  defective.  The  case  of 
Wood's  and  Brown's  Appeal,  82  Pa.  116,  also  arose  before  the  passage 
of  the  act  of  1875,  and  it  held,  that  the  entry  of  the  mortgage  in  the 
proper  book  gave  it  a  lien,  which  failure  to  index  would  not  disturb. 
The  case  of  Glading  v.  Frick,  88  Pa.  460,  also  arose  before  the  act  of 
1875.  It  was  there  decided  that,  "Where  certain  instruments  of  writ- 
ing are  not  required  by  law  to  be  recorded  in  a  particular  book,  they 
may  be  recorded  in  any  book  kept  by  the  recorder ;  and  a  building  con- 
tract is  valid  although  recorded  in  a  deed  book."  In  Wyoming  Na- 
tional Bank's  Appeal,  11  Wkly.  Notes  Cas.  567,  the  syllabus  reads: 
"Where  a  mortgage  is  left  for  record  and  actually  recorded,  its  lien 
will  not  be  postponed  to  a  subsequent  judgment,  by  reason  of  the  facf 
that  the  recorder  has  failed  to  enter  Uie  same  on  the  book  of  entries, 
or  upon  the  index."  But  this  court  was  careful  to  point  out  (page  568) 
that,  "The  mortgage  in  question  was  left  at  the  recorder's  office  in 
1873,  prior  to  the  passage  of  the  act  of  March  18,  1875,  so  that  it  is 
not  necessary  to  inquire  whether  the  failure  to  index  deprived  the 
mortgagee  of  his  security."  Clader  v.  Thomas,  89  Pa.  343,  and  Paige 
v.  Wheeler,  92  Pa.  282,  enunciate  no  new  principle,  and  both  cases 
arose  prior  to  the  act  of  1875.  Stockwell  v.  McHenry,  107  Pa.  237, 
52  Am.  Rep.  475,  does  not  bear  directly  upon  the  question  raised  by 
the  present  appeal.  As  pointed  out  by  the  Superior  Court,  the  case 
related  to  an  instrument  recorded  in  1865,  and  therefore  the  indexing 
act  of  1875  did  not  apply.  It  was  expressly  held  (107  Pa.  244,  52  Am. 
Rep.  475)  that  the  act  of  1875  was  not  retroactive.  In  the  case  of 
Farabee  v.  McKerrihan,.  172  Pa.  234,  33  Atl.  583,  51  Am.  St.  Rep.  734, 
the  mortgage  was  actually  recorded  and  indexed,  but  in  the  deed  book 
and  deed  index,  and  not  in  the  mortgage  book  and  mortgage  index.  It 
was  held  that  as  recording  in  the  deed  book,  and  indexing  in  the  deed 
index  placed  the  incumbrance  in  the  line  of  title  of  the  mortgagor, 
where  it  could  be  discovered  with  the  same  ease  and  certainty  as  if  it 
had  been  placed  in  the  mortgage  book  index,  by  anyone  examining  tli« 
title,  it  was  sufficient  notice  to  preserve  the  lien. 


934  DERIVATIVE  TITLES  (Part  2 

The  great  object  to  be  attained,  by  recording  and  indexing  an  instru- 
ment affecting  the  title  to  real  estate,  is  to  give  notice  of  the  incum- 
brance. This  principle  seems  to  have  been  overlooked  in  the  present 
case,  for  in  reaching  a  conclusion,  both  the  Superior  Court  and  the  trial 
court  apparently  gave  little  heed  to  the  fact  that  the  prime  purpose  of 
the  law,  in  providing  for  the  recording  of  deeds  and  mortgages,  is  to 
give  notice  to  intending  purchasers,  or  to  others  who  may  be  interested, 
that  the  conveyance  or  incumbrance  stands  in  the  line  of  title  to  the 
property  which  it  describes.  The  object  of  the  recording  acts  is  to  give 
notice  to  the  world  of  that  which  is  spread  upon  the  record.  Therefore, 
4he  record  is  constructive  notice  to  all  persons,  without  regard  to  the 
fact  of  actual  notice.  Under  our  system,  the  record  is  open  to  everyone 
who  desires  to  ascertain  the  condition  of  the  title  to  any  piece  of  real 
estate,  in  so  far  as  its  ownership  is  concerned,  or  as  to  incumbrances 
thereo-n,  and  everyone  is  bound  to  take  notice  of  what  the  record  shows, 
and  searchers  may  rely  upon  the  record  as  it  stands.  If  this  were  not 
so,  no  one  would  be  safe  in  purchasing  real  estate,  or  in  loaning  upon 
the  strength  of  it,  as  security. 

In  the  present  case,  the  mortgage  sued  upon  was  never  correctly 
recorded.  The  mortgage  on  record  purports  to  have  been  executed  by 
S.  J.  Marshall,  and  the  name  of  L.  J.  Marshall  does  not  appear  upon  it. 
The  record  of  a  mortgage  given  by  S.  J.  Marshall  is  not  notice  to 
anyone  seeking  for  incumbrances  against  L.  J.  Marshall.  The  same 
error  was  made  in  indexing  the  instrument.  It  was  indexed  as  S.  J. 
Marshall,  and  no  mortgage  given  by  L.  J.  Marshall  appears  upon  the 
index.  As  the  statute  requires  the  recorder  to  keep  mortgage  indexes, 
and  section  3  of  the  Act  of  March  18,  1875  (P.  L.  32),  expressly  pro- 
vides that  the  entry  of  r^ortgages  in  said  index,  shall  be  notice  to  all 
persons  of  the  recording  of  the  same,  the  appellant  here  was  entitled 
to  rely  upon  what  appeared  on  the  index,  and  that  showed  no  mort- 
gage given  by  L.  J.  Marshall. 

Considerable  stress  was  laid  upon  the  fact  that  tlie  recorder  had 
certified  that  the  mortgage  was  recorded ;  but  that  can  make  no  differ- 
ence whatever  as  to  notice  to  the  purchaser,  which  is  the  only  question 
that  concerns  him.  He  never  saw  the  certificate  of  the  recorder;  that 
was  given  to  the  mortgagee,  and  was  for  her  benefit.  If  the  recorder 
was  negligent  in  his  duty,  and  gave  her  a  false  certificate,  she  has 
doubtless  her  right  of  action  for  damages  against  him.  But  the  error 
made  by  the  recorder  does  not  alter  the  fact  that  no  notice  of  the 
mortgage,  either  actual  or  constructive,  was  given  to  the  purchaser. 
He  therefore  took  the  land  free  of  any  such  incumbrance,  and  it  can- 
not be  enforced  against  him.  The  motion  for  judgment  in  favor  of 
defendant,  non  obstante  veredicto,  should  have  been  sustained. 

It  should  be  remembered  that  in  this  case  the  mortgage  was  neither 
recorded  properly  nor  indexed  properly ;  both  recording  and  indexing 
were  alike  defective,  and  each  of  the  defects  was  fatal  to  the  claim  of 
the  mortsrasfee. 


Ch.  8)  PRIORITIES  935 

The  failure  to  index  properly  is  made  so  by  the  Act  of  March  18, 
1875  (P.  L.  32),  which  after  requiring  in  the  first  section,  the  recorder 
to  prepare  and  keep  two  general  indexes,  the  one  direct,  and  the  other 
ad  sectum,,  of  all  mortgages  recorded  in  his  office,  goes  on  to  provide : 

"Sec.  2.  As  soon  as  said  indexes  are  prepared,  it  shall  be  the  duty 
of  the  recorder  to  index  in  its  appropriate  place  and  manner  every 
deed  and  mortgage  thereafter  recorded  in  his  office,  at  the  time  the 
same  is  recorded,  and  in  case  he  neglect  to  do  so,  he  and  his  sureties 
shall  be  liable  in  damages  to  any  person  aggrieved  by  such  neglect." 
In  Pyles  v.  Brown,  189  Pa.  164,  168,  42  Atl.  11,  12,  69  Am.  St.  Rep. 
794,  our  Brother  Fell  said  that  this  act  'Svas  probably  passed  to  remedy 
the  defects  in  the  recording  acts  pointed  out  by  Chief  Justice  Agnew 
in  the  opinion  in  Schell  v.  Stein,  76  Pa.  398  [18  Am.  Rep.  416],  decided 
in  1874."  There  it  was  said  (76  Pa.  400^  18  Am.  Rep.  416) :  "The 
question  presented  by  the  record  in  this  case  is,  whether  a  deed  regu- 
larly acknowledged  or  proved,  and  recorded  in  the  proper  book,  and 
indexed  in  the  separate  index  appropriated  to  the  book,  but  not  in  the 
general  index  of  all  the  deed  books,  is  not  defectively  recorded.  If 
it  be,  tlie  conceded  principle  is,  that  a  deed  defectively  registered  is  a 
nullity  as  to  subsequent  purchasers  or  mortgagees.  There  is  no  law 
which  requires  the  recorder  to  keep  a  general  index  to  all  the  deed  or 
mortgage  books  in  his  office.  That  it  is  a  great  convenience,  and  in 
the  populous  counties  of  the  state  has  become  a  necessity,  is  evident, 
but  it  is  the  province  of  the  legislature,  and  not  of  this  court,  to  make 
this  convenience  or  the  necessity  the  subject  of  law." 

The  needed  legislation  thus  pointed  out,  requiring  the  keeping  of 
general  indexes,  was  provided  by  the  act  of  1875,  and  thereafter  under 
the  reasoning  of  Justice  Agnew,  supra,  the  failure  to  index  in  the  gen- 
eral index  became  such  a  defect  in  the  recording,  as  to  make  it  a  nullity 
to  subsequent  purchasers  or  mortgagees."*^ 

In  1  Jones  on  Mortgages  (6th  Ed.  1904)  §  515,  it  is  said:  "If  the 
record  of  a  deed  be  defective  for  any  cause,  it  is  constructive  notice 
of  only  what 'the  record  contains,  in  case  the  record  is  not  an  accurate 
transcript  of  the  instrument.  This  is  the  view  sustained  by  the  greater 
number  of  decisions  and  by  the  greater  weight  of  reason,  as  distin- 
guished from  the  view  that  the  filing  of  the  deed  operates  as  a  record 
of  it,  and  that  it  is  constructive  notice  from  such  time  of  the  actual 
contents  of  the  deed,"  citing  Heister  v.  Fortner,  2  Bin.  40,  4  Am.  Rep. 
417;  Schell  v.  Stein,  76  Pa.  398,  18  Am.  Rep.  416,  and  cases  in  Cali- 
fornia, Indiana,  Maine,  Maryland,  Michigan,  Minnesota,  Missouri, 
New  Jersey,  New  York,  Virginia  and  Wisconsin. 

So  also  in  2  Pomeroy's  Equity  Juris.  (3d  Ed.,  1905)  §  654,  there  is 
a  clear  statement  of  what  'we.  think  is  a  sound  principle.  It  is  there 
said :  "A  record  is  a  constructive  notice  only  when  and  so  far  as  it  is 
a  true  copy,  substantially  even  if  not  absolutely  correct,  of  the  instru- 

3  8  So,  also,  in  Iowa  the  failure  to  index  is  fatal.  Barney  v.  McCarty,  15 
Iowa,  510,  83  Am.  Dec.  427  (1S64). 


93G  DERIVATIVE  TITLES  (Part  2 

ment  which  purports  to  be  registered,  and  of  all  its  provisions.  Any- 
material  omission  or  alteration  will  certainly  prevent  the  record  from 
being  a  constructive  notice  of  the  original  instrument,  although  it  may 
appear  on  the  registry  books  to  be  an  instrument,  perfect,  and  opera- 
tive in  all  its  parts.  The  test  is  a  plain  and  simple  one.  It  is  whether 
the  record,  if  examined  and  read  by  the  party  dealing  with  the  prem- 
ises, would  be  an  actual  notice  to  him  of  the  original  instrument  and 
of  all  its  parts  and  provisions.  B}''  the  policy  of  the  recording  acts,  such 
a  party  is  called  upon  to  search  the  records,  and  he  has  a  right  to  rely 
upon  what  he  finds  there  entered  as  a  true  and  complete  transcript  of 
any  and  every  instrument  affecting  the  title  to  the  lands  with  respect 
to  which  he  is  dealing.  A  record  can  only  be  a  constructive  notice,  at 
most,  of  whatever  is  contained  within  itself.  *  *  *  The  same  rule 
.applies  to  the  record  of  miortgages  and  all  other  incumbrances  which 
can  be  recorded.  The  language,  both  of  the  original  and  of  the  record, 
must  be  such  that  if  a  subsequent  purchaser  or  incumbrancer  should 
examine  the  instrument  itself,  he  would  obtain  thereby  an  actual  notice 
of  all  the  rights  which  were  intended  to  be  created  or  conferred  by  it." 

In  the  case  at  bar,  the  duty  was  upon  the  mortgagee" to  give  notice 
that  L.  J.  Alarshall  had  executed  to  her  a  mortgage  upon  the  premises 
in  question.  If  from  any  cause  she  fell  short  of  giving  legal  notice,  the 
consequence  must  fall  upon  her.  She  cannot  hide  behind  the  mistake 
of  the  recorder.  It  is  an  easy  matter  for  a  mortgagee,  or  a  grantee  in 
each  particular  instance,  either  in  person,  or  by  a  representative,  to 
look  at  the  record,  and  see  that  the  instrument  has  been' properly  en- 
tered. The  instrument  itself  is  at  hand.  The  names  of  the  parties  are 
known,  and  comparisons  are  easily  made.  How  would  it  be  possible 
for  a  subsequent  purchaser  to  know  anything  about  the  facts?  The 
duty  thus  imposed  upon  the  mortgagee  in  this  respect,  involves  no 
more,  and  no  less,  than  is  required  of  a  mortgagee,  for  his  own  pro- 
tection, when  before  the  money  is  paid  out  upon  the  loan,  an  inspection 
of  the  judgment  indexes  is  necessary  to  see  whether  or  not  a  judgment 
has  been  entered  against  the  mortgagor  upon  the  same  day  on  which 
the  mortgage  is  recorded.  Some  care  must  be  exercised  in  every  such 
transaction.  There  is  every  reason  why  it  should  be  made  the  duty 
of  the  mortgagee  to  see  that  his  instrument  is  properly  recorded.  This 
will  not  in  any  way  interfere  with  the  principle  that  when  the  instru- 
ment is  certified  as  recorded,  it  shall  import  notice  of  the  contents  from 
the  time  of  filing.  But  that  must  be  understood  as  in  connection  with 
an  instriiment  properly  recorded.  As  said  above,  the  record  is  notice 
of  just  what  it  contains,  no  more  and  no  less.  The  obligation  of  seeing 
that  the  record  of  an  instrument  is  correct,  must  properly  rest  upon  its 
holder.  If  he  fails  to  protect  himself,  the  consequence  cannot  justly 
be  shifted  upon  an  innocent  purchaser. 

The  judgment  of  the  Superior  Court  is  reversed,  as  is  also  that  of 
the  court  of  common  pleas,  and  it  is  ordered  that  judgment  in  favor 
of  the  terre-tenant  be  entered,  non  obstante  veredicto. 


Ch.  8)  PRIORITIES  937 

IMUTUAL  L.  INS.  CO.  v.  DAKE. 

(Court  of  Appeals  of  New  York,  1881.     87  N.  Y.  257.) 

Earl,  J.  This  action  is  brought  to  foreclose  a  mortgage  which  was 
executed  by  the  defendant  Teeple  and  his  wife,  to  the  plaintiff  on  the 
4th  day  of  June,  1870,  upon  lands  in  Livingston  county,  to  secure  pay- 
ment of  the  sum  of  82,000  with  interest. 

On  the  7th  day  of  December,  1870,  the  plaintiff  left  the  mortgage 
at  the  office  of  the  clerk  of  Livingston  county,  for  record,  and  paid 
the  fee  for  recording  it.  On  the  same  day  the  clerk  duly  transcribed 
the  mortgage  in  full,  in  the  proper  record  book  in  his  office,  and  in- 
dorsed on  it  his  certificate  in  due  form,  and  returned  the  mortgage, 
so  indorsed,  to  the  plaintiff.  The  clerk  omitted,  however,  by  mistake, 
to  index  the  mortgage,  and  the  plaintiff  was  ignorant  of  the  omission 
until  September,  1875,  when  the  omission  having  been  discovered,  the 
mortgage  was  indexed  by  the  clerk.  The  defendant,  Jabez  W.  Dake, 
is  the  assignee  of  two  mortgages  executed  by  Teeple,  on  the  same 
premises,  one  prior  to  the  plaintiff's  mortgage,  dated  April  6,  1868,  for 
$600  and  interest,  given  to  one  Nichols;  the  other,  executed  to  one 
Baity,  on  the  14th  of  March,  1874,  duly  recorded  and  indexed  on  that 
day,  and  assigned  by  Baity  to  Dake,  on  the  10th  of  March,  1875.  The 
mortgage  to  Baity  was  given  to  secure  the  payment  of  the  sum  of  $1,- 
400  loaned  by  Baity  to  Teeple  at  the  time  of  the  execution  of  the 
mortgage.  Before  making  the  loan,  and  in  view  of  it,  Baity  procured 
from  the  clerk  a  certificate  of  search,  as  to  the  title  to  the  premises, 
and  incumbrances  thereon.  The  certificate  did  not  show  the  existence 
of  the  plaintiff's  mortgage,  and  Baity  had  no  actual  notice  or  knowl- 
edge of  it  until  after  he  assigned  his  mortgage  to  Dake.  The  assign- 
ment to  Dake  was  for  a  valuable  consideration,  and  was  duly  recorded 
on  the  16th  of  March,  1875.  Before  taking  it,  Dake  saw  the  cer- 
tificate of  search  which  Baity  had,  and  also  procured  for  himself  a 
certificate  of  search  from  the  clerk,  which,  as  well  as  the  one  in  Balty's 
hands,  did  not  show  the  existence  of  the  plaintiff's  mortgage,  and  Dake 
had  no  actual  notice  or  knowledge  of  such  mortgage  till  the  6th  of 
December,  1875.  The  question  now  to  be  determined  is,  whether  the 
plaintiff's  mortgage  or  the  Baity  mortgage  shall  have  priority,  Dake 
claiming  that  although  the  plaintiff's  mortgage  was  prior  in  time,  it 
lost  its  priority  because  it  was  not  indexed. 

We  have  carefully  examined  the  able  and  exhaustive  briefs  submit- 
ted to  us,  and  are  satisfied  that  no  error  was  committed  in  the  court 
below  by  its  holding  that  plaintiff's  mortgage  had  the  priority.  The 
carefully  prepared  and  able  opinion  of  Smith,  J.,  at  the  Special  Term, 
leaves  but  little  now  to  be  said ;  but  as  the  question  is  claimed  to  be 
a  new  one  in  tliis  State,  we  will  briefly  state  the  reasons  for  our  af- 
firmance of  the  judgment  appealed  from. 


938  DERIVATIVE  TITLES  (Part  2 

The  plaintiff's  mortgage,  being  prior  in  time,  is  entitled  to  priority  ' 
over  the  Baity  mortgage,  unless  it  has  lost  such  priority  by  force  of 
the  Recording  Act,  and  a  reference  to  it  is  therefore  needful.  It  is 
found  in  chap.  3,  part  2,  of  the  Revised  Statutes,  which  chapter  is  en- 
titled, "of  the  proof  and  recording  of  conveyances  of  real  estate,  and 
the  canceling  of  mortgages."  Section  1  provides,  that  "Every  con- 
veyance of  real  estate  within  this  State,  hereafter  made,  shall  be  re- 
corded in  the  office  of  the  clerk  of  the  county  where  such  real  estate 
shall  be  situated;  and  every  such  xonveyance  not  so  recorded,  shall 
be  void  as  against  any  subsequent  purchaser,  in  good  faith  and  for  a 
valuable  consideration,  of  the  same  real  estate,  or  any  portion  thereof, 
whose  conveyance  shall  be  first  duly  recorded."  The'  record  here  in- 
tended was  plainly  a  copy  of  the  conveyance,  transcribed  into  the 
proper  book  of  records.  Section  2  provides,  that  "Different  sets  of 
books  shall  be  provided,  by  the  clerks  of  the  several  counties,  for  the 
recording  of  deeds  and  mortgages."  Section  24  provides,  that  "Every 
conveyance  entitled  by  law  to  be  recorded,  shall  be  recorded  in  the 
order,  and  as  of  the  time,  when  the  same  shall  be  delivered  to  the  clerk 
for  that  purpose,  and  shall  be  considered  as  recorded,  from  the  time 
of  such  delivery."  Section  25  provides,  that  "The  recording  officer 
shall  make  an  entry  in  the  record,  immediately  after  the  copy  of  every 
conveyance  recorded,  specifying  the  time  of  the  day,  month  and  year 
when  the  said  conveyance  was  recorded,  and  shall  endorse  upon  ev- 
ery conveyance  recorded  by  him,  a  certificate,  stating  the  time  as  afore- 
said, when,  and  the  book  and  page  where,  tiie  same  was  recorded ;" 
and  a  later  section  (38)  provides  that  the  term  "Conveyance"  shall  em- 
brace a  mortgage. 

Here  there  is  a  complete  system  for  the  registry  of  deeds  and  mort- 
gages prescribing  the  place  and  mode  of  registry,  and  not  one  word 
is  said  of  any  index  to  be  made.  It  will  be  observed  that  the  clerk 
is  not  required  to  certify,  upon  the  conveyance  recorded,  tliat  he  has 
indexed  the  same,  and  yet  if  the  index  was  an  essential  part  of  the  rec- 
ord, it  cannot  be  supposed  that  a  matter  so  important  would  have 
been  omitted  from  the  certificate  required. 

By  chapter  313  of  the  Laws  of  1826,  county  clerks  were  required 
to  make  separate  indices  in  separate  books  of  all  deeds  and  mortgages 
recorded  or  registered  in  tlieir  respective  offices,  whenever  directed 
by  the  Court  of  Common  Pleas,  and  it  was  provided  that  they  should 
be  paid  for  making  such  indices  by  the  board  of  supervisors,  and  that 
was  the  first  act  in  this  State,  in  reference  to  indexing  deeds  and  mort- 
gages. It  did  not  provide  for  indexing  conveyances  thereafter  to  be 
recorded. 

The  only  provision  in  the  Revised  Statutes  on  the  subject  of  index- 
ing conveyances  is  found  in  part  3,  chapter  3,  article  2,  which  article 
is  entitled  "Of  the  powers  and  duties  of  certain  judicial  officers."  Sec- 
tion 61  of  the  article  provides,  tliat  "It  shall  be  the  duty  of  the  clerk 


Ch.  8)  PRIORITIES  939 

of  each  county  in  the  State,  and  of  the  register  of  the  city  and  county 
of  New  York,  to  attach  to  every  book  kept  in  his  office,  in  which  deeds 
or  mortgages  shall  be  recorded,  or  collectors'  bonds  entered,  an  index 
to  the  matters  contained  in  such  books,  arranged  in  alphabetical  order, 
under  tlie  names  of  the  several  parties  to  such  matters,  with  references 
to  the  pages  where  the  same  may  be  found,  which,  together  with  such 
books,  shall  at  all  proper  times  be  open  for  the  inspection  of  any  per- 
son paying  therefor  the  fees  allowed  by  law."  That  section  is  still  in 
force ;  it  does  not  make  the  index  a  part  of  the  record ;  it  recognizes 
the  record  as  complete  without  the  index,  and  simply  provides  for  an 
index  to  the  records. 

The  first  lav/  requiring  county  clerks  to  make  and  keep  books  of 
general  indices  is  found  in  chapter  199  of  tlie  Laws  of  1843,  section 
1  of  which  provides,  that  "The  clerks  of  the  several  counties  in  this 
State,  and  the  register  of  the  city  and  county  of  New  York,  in  those 
counties  in  which  general  indices  of  deeds  and  mortgages  have  not 
been  made  and  preserved,  according  to  the  act  passed  April  18th,  1826, 
shall  provide  proper  books  for  making  such  general  indices,  and  shall 
form  indices  therein  in  such  manner  as  to  afford  correct  and  easy  ref- 
erence to  the  several  books  of  record  in  their  offices  respectively.  There 
shall  be  one  book  for  deeds  and  another  for  mortgages.  In  each  book 
there  shall  be  made  double  entries,  or  two  lists  of  names,  in  alphabeti- 
cal order.  In  one  shall  be  set  the  names  of  the  grantors  or  mortga- 
gors, followed  by  the  names  of  their  grantees  or  mortgagees ;  and  in 
the  other,  the  names  of  the  grantees  or  mortgagees,  followed  by  the 
names  of  the  grantors,  or  mortgagors,  leaving  proper  blanks  between 
each  class  of  names  for  subsequent  entries ;  and  in  those  counties  in 
which  indices  were  made  under  the  said  act  of  April  18,  1826,  and 
have  been  preserved,  the  several  clerks  shall  complete  the  same  by 
bringing  them  down  to  the  present  time,  and  in  either  case,  the  said 
clerks  shall  keep  the  said  indices  complete  by  adding  to  the  lists,  as 
deeds  and  mortgages  shall  be  sent  in  to  be  recorded."  And  section  2 
provides,  that  "Each  county  clerk  is  hereby  authorized  to  charge  in  his 
account  against  his  county,  all  necessary  expenses  which  he  may  incur 
in  the  purchase  of  books  for  such  indices,  and  at  and  after  the  rate  of 
fifty  cents  for  every  hundred  names,  which  he  may  enter  in  such  book." 
■The  indices  here  provided  for  clearly  form  no  part  of  the  record,  but 
are  intended,  in  the  language  used  in  section  1,  "to  afford  correct  and 
easy  reference"  to  the  books  of  record ;  and  the  record  is  thus  recog- 
nized as  existing  independently  of  the  indices.  It  must  be  noticed 
further,  that  while  a  person  who  procures  a  conveyance  to  be  recorded 
must  pay  the  clerk  his  fee  for  recording,  it  is  provided  in.  section  2 
tliat  the  expense  of  indexing  is  a  public  charge. 

I  have  thus  quoted  at  length  the  main  provisions  of  the  Recording 
Act,  and  of  the  acts  in  reference  to  indices,  that  the  full  force  of  the 
language  used  in  them  may  be  fully  and  easily  comprehended;    and 


940  DERIVATIVE  TITLES  (Part  2 

thus  It  Is  plainly  seen  that  there  is  nothing  in  them  which  makes  the 
index  a  part  of  the  record.  It  is  clear  that  the  only  purpose  which  was 
intended  to  be  served  by  the  indices  is  as  a  guide  to  the  records  for 
the  convenience  of  searchers. 

That  our  conclusion  is  the  correct  one  is  made  still  more  manifest 
by  section  26  of  the  Recording  Act,  which  provides  that  the  transcript 
of  any  record  of  a  deed  or  mortgage,  recorded  as  provided  in  the 
act,  may  be  read  in  evidence,  when  certified  by  the  clerk  to  be  a  true 
copy  of  such  record.  The  record  intended  in  that  section  is  unques- 
tionably the  record  made  by  a  transcript  of  a  conveyance  in  the  proper 
book,  as  provided  in  the  act,  and  the  index  is  no  part  of  such  record 
which  is  required  to  be  certified.  It  was  never  heard  that  a  certified 
copy  of  the  record  of  a  deed  or  mortgage  was  objected  to,  or  excluded 
as  evidence,  because  a  copy  of  the  index  was  not  included  as  a  por- 
tion of  the  record;  and  yet  if  it  formed  an  essential  portion  of  tlie 
record,  it  would  always  have  to  be  certified  as  part  thereof. 

There  is  nothing  in  the  history  of  the  legislation  on  the  subject  of 
the  registration  of  deeds  and  mortgages,  from  the  earliest  time  in  Eng- 
land and  in  this  State,  which  tends,  in  the  least  degree,  to  show  that 
it  has  ever  been  supposed  that  indexing  was  any  essential  or  necessary 
part  of  registration.  Such  legislation  is  ably  reviewed  in  the  opinion 
of  Smith,  J.,  at  Special  Term,  and  needs  no  further  notice  here. 

Whatever  forms  part  of  a  perfect  record,  as  prescribed  in  the  act, 
is  essential ;  that  is,  the  conveyance  must  be  recorded  in  the  proper 
book,  in  the  proper  order,  and  with  substantial  accuracy.  If  the  record 
be  defective  in  any  thing  essential,  it  will  not  serve  the  purpose  of 
giving  constructive  notice  to  subsequent  bona  fide  grantees  or  incum- 
brancers. 

It  is  claimed,  on  the  part  o£  the  appellant,  that  if  the  Index  is  no 
part  of  the  record,  it  is  useless,  and  even  worse  than  useless,  as  it 
might  operate  to  ensnare  and  mislead  persons  relying  upon  it.  It  is 
true  that  an  index  may,  by  mistake,  be  omitted ;  but  such  mistakes 
must  rarely  occur,  and  the  legislature  undoubtedly  deemed  it  sufficient 
to  make  it  part  of  the  duty  of  county  clerks  to  make  the  indices.  It 
is  an  adequate  guaranty  that  the  indices  will  be  sufficiently  correct  and 
reliable  that  county  clerks  are  liable  to  be  indicted  if  they  willfully  or. 
fraudulently  omit  to  make  them  correctly,  and  are  at  the  same  time 
liable  in  a  civil  action  to  the  party  injured  by  their  omission  or  neglect. 
The  duty  to  make  the  indices  is  a  public  duty,  for  which  the  clerks 
are  paid  by  the  public,  and  for  the  violation  of  such  a  duty,  it  cannot 
be  doubted  that  any  one  of  the  public  specially  injured  has  his  action. 

When  a  conveyance  is  delivered  to  the  clerk  the  statute  provides,  that 
it  shall  be  "considered  as  recorded  from  the  time  of  such  delivery." 
After  such  delivery  nothing  more  need  be  done  to  keep  the  record 
perfect,  except  at  the  proper  time  to  record  it  in  its  proper  order,  in 
the  proper  book;    and  yet  if  the  conveyance,  in  the  meantime,  before 


Ch.  8)  PRIORITIES  941 

the  record  thereof,  should  be  mislaid  in  the  clerk's  office,  or  lost  or  pur- 
loined, the  record  would  still  remain  complete.  In  such  case  there 
could  be  no  index  of  such  conveyance,  because,  until  the  time  for  re- 
cording it  had  arrived,  it  could  not  be  known  in  what  book,  or  in  what 
place  in  any  book,  it  would  be  recorded. 

That  the  index  is  no  part  of  the  record,  and  may  be  omitted  by  the 
clerk  without  impairing  the  record,  is  the  view  sanctioned  by  tlie  cur- 
rent of  decisions,  in  the  other  States,  and  by  elementary  writers.  In 
4  Kent's  Com.  174,  note,  it  is  said:  "An  index  or  alphabet  of  a  mort- 
gage is  no  part  of  a  mortgage,  and  a  mortgage  is  duly  registered  if 
no  index  of  it  is  made."  In  1  Washburn  on  Real  Property,  578,  the 
rule  is  laid  down  as  follows :  "The  proposition  is  a  general  one,  that 
an  irregular  registration  of  a  deed  is  no  notice  to  others  of  the  existence 
of  such  deed  ;  but  an  omission  of  the  register  to  note  the  time  of  re- 
ceiving the  deed  for  record,  or  to  enter  it  in  the  index  or  alphabet,  will 
not  invalidate  the  effect  of  the  registration ;"  and  in  1  Hilliard  on 
Mortgages,  721  (4th  Ed.),  as  follows:  "The  record  of  a  mortgage  is 
sufficient,  though  not  mentioned  in  the  alphabet,  or  index ;"  and  also 
in  1  Jones  on  Mortgages  as  follows :  "The  index  is  no  part  of  the 
record,  and  a  mistake  in  it  does  not  invalidate  the  notice  afforded  by 
a  record  otherwise  properly  made ;  although  the  mortgage  be  omitted 
from  the  index  it  is  just  as  much  an  incumbrance  upon  the  land,  and  " 
notice  of  it  from  the  time  it  was  left  for  record,  or  transcribed,  affects 
all  subsequent  purchasers." 

It  may  be  that  the  index,  both  for  convenience  and  safety,  should 
be  made  a  part  of  the  record ;  but  until  it  is  so  made  by  the  legisla- 
ture, we  can  but  pronounce  the  law  as  it  is. 

The  judgment  should  be  affirmed,  with  costs.     All  concur. 

Judgment  affirmed. ^^ 

S7  The  Toerens  System.— The  present  system  of  recording,  under  which,  as 
is  evident  from  the  cases  above,  only  instruments  of  title  are  recorded  or  filed, 
has  many  sliorteomings.  Even  after  the  most  careful  examination  of  the  rec- 
ords, showing,  perhaps,  a  perfect  record  title  in  a  certain  person,  no  one  can  be 
wholly  safe  in  relying  thereon.  There  are  many  matters,  any  one  of  which 
would  be  amply  sufhcient  to  upset  completely  such  apparently  perfect  title,  that 
do  not  .show  upon  the  records,  and  that  cannot  be  disclosed  by  an  examination 
thereof.  In  fact  many  of  such  matters  are  almost  impossible  of  disclosure  by 
an  ordinarily  careful  additional  examination  outside  the  records.  Among  the 
many  matters  which  may  thus  affect  an  apparently  perfect  title  are  nondeliv- 
ery, forgery,  incapacity,  etc.     See  12  Mich.  L.  Rev.  3S9  et  seq. 

Aside  from  the  foregoing,  the  recording  system  ordinarily  involves  at  each 
sale  or  incumbrance  an  expert  examination  of  the  entire  record,  which  means 
expense,  often  large  expense. 

Because  of  these  deficiencies  of  the  prevalent  system  there  has  been  a  stead- 
ily growing  demand  for  something  better.  By  many  it  is  claimed  that  the 
so-called  Torrens  System  of  Land  Title  Registration  mil  obviate  many,  if  not 
all,  our  present  ills.  Under  that  system  title  itself  is  registered,  and'  therein 
lies  the  fundamental  difference  between  it  and  our  present  system  of  record- 
ing title  instruments.  The  system  takes  its  name  from  Sir  Robert  R.  Torrens, 
a  native  of  Ireland,  who  emigrated  to  Australia  in  18-10,  later  becoming  the 
first  Premier  of  South  Australia.     It  is  said  that  it  was  in  1S50,  when  he  was 


942  DERIVATIVE  TITLES  (Part  2 

collector  of  customs  at  Adelaide,  that  he  first  thought  of  applying  to  land  the 
method  of  registering  and  transferring  ownership  in  ships.  In  185S.  the  first 
"Torrens  Title  Act"  went  into  effect;  in  South  Australia,  largely  through  the 
efforts  of  Sir  Robert  R.  Torrens.  Although  the  system  in  England  and  her 
dependencies  and  in  the  United  States  is  known  by  his  name,  he  was  by  no 
means  its  inventor,  so  to  speak,  for  similar  systems  had  been  in  operation  in 
parts  of  Europe  for  many  years.     Sheldon,  Land  Registration,  c.  7. 

In  the  United  States  the  flrst  difnculty  is  to  draw  a  statute  that  will  with- 
stand constitutional  objections.  The  first  American  statute  introducing  the 
Torrens  System  was  enacted  in  Illinois  in  1895 ;  the  second,  in  Ohio  in  1890. 
California",  Massachusetts,  Oregon,  Minnesota,  Colorado,  Washington,  and  New 
York  followed.  The  first  Torrens  Act  in  Illinois  was  held  unconstitutional. 
People  V.  Chase,  165  111.  527,  46  N.  E.  454,  36  L.  R.  A.  105  (1897).  Following 
that  decision,  the  Illinois  Legislature  enacted  a  new  statute,  which  has  so  far 
withstood  constitutional  attacks.  The  Ohio  statute  of  1896  also  was  held  in- 
valid. State  V.  Cuilbert,  56  Ohio  St.  575,  47  N.  E.  551,  38  L.  R.  A.  519.  GO  Am. 
St.  Rep.  756  (1897).  In  1913,  the  Ohio  Legislature,  pursuant  to  provisions  of 
an  amendment  to  the  Constitution  adopted  in  1912,  enacted  a  new  statute  for 
registration  of  land  titles. 

The  statutes  are  too  lengthy  to  give  even  in  summary.  The  procedure  in 
bringing  land  under  the  system  and  the  manner  of  dealing  therewith  after- 
wards are  well  stated  in  the  following  language  used  by  the  Supreme  Court  of 
Minnesota  in  State  v.  Westfall,  85  Minn.  437,  89  N.  W.  175,  57  L.  R.  A.  297,  89 
Am.  St.  Rep.  571  (1902),  in  which  the  court  declared  the  Minnesota  Torrens  Act 
constitutional : 

"The  act  provides,  among  other  things,  that  the  owner  of  any  estate  or  in- 
terest in  land  may  have  the  title  thereto  registered  by  making  an  application 
in  writing,  stating  certain  facts,  to  the  district  court  of  the  county  wherein 
the  land  is  .situated.  Thereupon  the  court  has  power  to  inquire  into  the  state 
of  the  title,  and  make  all  decrees  necessary  to  determine  it  against  all  persons, 
known  or  unknov.-n.  The  application  must  be  filed  and  docketed  in  the  office 
of  the  clerk  of  the  court,  and  a  duplicate  thereof  filed  with  the  register  of 
deeds,  who  is  ex  officio  registrar  of  titles.  The  application  is  then  referred  by 
the  court  to  an  examiner  of  titles,  who  investigates  the  titles,  and  inquires  as 
to  the  truth  of  the  alk\gations  of  the  application,  particularly  whether  the  land 
is  occupied  or  not,  and  makes  and  files  a  report  of  his  examination  with  tlie 
clerk.  Upon  the  filing  of  the  report  the  clerk  issues  a  summons  by  order  of 
the  court,  wherein  the  applicant  is  named  as  plaintiff,  and  the  land  described, 
and  all  other  persons  knowai  to  have  any  interest  in  or  claim  to  the  land  and 
'all  other  persons  or  parties  unknown'  claiming  any  interest  in  the  real  estate 
described  in  the  application  are  named  as  defendants.  The  summons  must  be 
directed  to  such  defendants,  and  require  them  to  appear  and  answer  within 
twenty  days.  It  must  be  served  in  tlie  manner  now  provided  for  the  service 
of  summons  in  civil  actions,  with  this  exception :  That  the  summons  shall  be 
served  on  nonresident  defendants  and  upon  all  unknown  persons  by  publishing 
it  in  a  newspaper  printed  and  published  in  the  coimty  where  the  application 
is  filed  once  a  week  for  three  consec-utive  weeks.  In  addition  to  such  publica- 
tion the  clerk  shall,  within  twenty  days  after  the  first  publication,  mail  a  copy 
of  the  summons  to  all  nonresident  defendants  whose  place  or  address  is  known, 
and  the  court  may  order  such  additional  notice  of  the  application  as  it  may 
direct.  Any  interested  party  may  appear  and  answer.  If  no  appearance  is 
made,  the  court  may  enter  the  default,  but  must  take  proof  of  the  applicant's 
right  to  a  decree,  and  is  not  bound  by  the  report  of  the  examiner,  but  may  re- 
quire further  proof.  If  appearance  is  made,  the  case  shall  be  set  for  trial,  and 
heard  as  other  civil  actions.  If  the  court  finds  that  the  applicant  has  title 
proper  for  registration,  a  decree  confirming  the  title  and  ordering  registi-ation 
shall  be  entered.  Every  such  decree  shall  bind  the  lands  and  quiet  title  there^ 
to,  except  as  othei-\;\'ise  provided  in  the  act,  and  shall  be  forever  binding  and 
conclusive  upon  all  persons,  whether  mentioned  by  name  or  included  in  the  ex- 
pression 'all  other  persons  or  parties  unknown,'  and  such  decree  shall  not  open 
by  the  reason  of  absence,  infancy,  or  other  disability  *  '■■  *  except  as  pro- 
vided in  the  act.  *  *  *  Every  person  receiving  a  certificate  of  title  and 
every  subsequent  purchaser  in  good  faith  takes  the  same  free  from  all  in- 
cumbrances, except  such  as  are  noted  thereon.     Upon  entering  the  decree  of 


Ch.8) 


PRIORITIES  943 


registration,  a  certified  copy  thereof  must  be  filed  by  the  clerk  in  the  office  of 
the  registrar  of  titles,  who  proceeds  to  register  the  title  pursuant  to  the  decree. 
This  he  does  by  entering  an  original  certificate  in  the  registry  of  titles,  and  de- 
livering a  duplicate  thereof  to  the  o\A'ner,  who  may  thereafter  convey  his  title 
by  the  execution  of  deeds  and  the  surrender  of  his  certificate  to  the  registrar 
for  cancellation,  who  issues  a  new  certificate  to  the  purchaser." 

And  such  is  the  only  method  by  which  the  land,  after  registration,  may  be 
conveyed ;  the  old  duplicate  certificate  must  be  delivered  up  and  canceled;  and 
a  new  certificate  issued  to  the  new  owner.  Most  of  the  statutes,  as  in  Minne' 
sota,  still  preserve  the  use  of  the  deed,  which,  however,  does  not  act  in  itsel" 
as  a  conveyance,  even  after  complete  execution. 


INDEX 


[the  figures  refer  to  pages] 


ACCEPTANCE, 

Of  convejance,  necessity,  375  Thompson,  383  note,  384  Welch. 
Of  dedication,  necessity  to  bind  landowner,  182  Cassidy. 
To  bind  public  corporation,  183  Downing. 

ACCRETION, 

Apportionment  of,  155  note. 

Artificially  induced,  146  note. 

Effect  upon  defined  boundaries,  147  Volcanic  Oil  &  Gas  Co. 

To  banks  or  shores,  ownership,  140  GifCord. 

What  is.  140  Gifford,  145  Halsey. 

ACKNOWLEDGMENT, 

Required  for  what,  279,  914  Sigourney. 

ADVERSE  POSSESSION,  , 
Disabilities,  91  Doe. 
Minerals,  80  note. 
Tacking,  24-43. 
What  constitutes,  43-80. 

Claim  of  title,  43  Ricard,  51  French,  56  Preble,  61  Bond. 

Devisee  for  life  under  invalid  will,  68  Hanson. 

Donee  under  parol  gift.  63  note. 

Mistaken  belief  of  limited  right,  61  Bond. 

Mistaken  belief  of  ownership,  51  French,  56  Preble. 

Possessor  supposing  title  in  one  not  really  the  owner,  72  Dean,  78  note, 

79  Mitchell. 
Squatter,  51  note. 

Tenant  after  disclaimer,  65  Fortier. 
Tenant  for  life  after  death  of  cestui  que  vie,  66  Parker. 

See  Constructive  Adverse  Possession ;    Lapse  of  Time ;   Prescrip- 
tion. 

AFTER-ACQUIRED  TITLE, 

Transfer  by  estoppel,  793-809.  ^ 

ASSIGNMENT, 
Defined,  231. 

ATTESTATION, 

Required  for  what,  279. 

ATTORNMENT, 

Abolished,  162  note, 

BARGAIN  AND  SALE, 

Consideration  for,  248  Jackson,  254  note. 
Nature  of,  236. 

Operation  of  Statute  of  Uses  upon,  248  Lutwich. 
Words  sufficient  for,  248  Grey. 

BOUNDARIES, 

Confiict  between  course  and  distance,  411  Hall,  416  Temple.     ' 

Between  course  and  monument,  402  Hoban,  405  Whitehead,  407  Lemed 
408  Burkholder.  •      •  ' 

Aig.Prop.— GO  (945) 


946  INDEX 

[The  figures  refer  to  pages] 

BOUNDARIES— Continued, 

Mistake  in  location,  adverse  jwssession,  51  French,  5G  Preble. 
Necessity  for,  394  Harris,  395  Lego,  401  Morehead. 
On  private  way,  429  Saccone. 

Streets  and  streams,  421  Sizer,  426  note,  436  C.  &  E.  I.  R.  Co.,  43S  Ix)w, 
440  Jonas,  443  note,  444  Trowbridge,  447  Dodd. 

Unopened  street,  426  Bangor  House  Prop. 

Ways  on  margin  of  land,  429  Saccone,  434  Geddes  Coarse  Salt  Co. 
Reversal  of  calls,  402  Hoban,  404  note. 
Undetermined  part  of  larger  tract,  401  Morehead. 

CANCELLATION, 

Of  lease  as  surrender,  190  Lord  Ward. 

COLOR  OF  TITLE, 

Meaning  of,  81  Jackson,  S2  note. 

COMMON  RECOVERY, 
Defined,  160. 

CONCURRENT  OWNERSHIP, 

Accoimttng  by  cotenant,  711  Pico,  715  note. 

Conveyance  of  part  by  metes  and  bounds,  723  Griswold,  725  Cressy,  72S 

Lessee  of  White. 
Improvements  by  cotenant,  722  Kelsey. 
Outstanding  title  acquired  by  cotenant,  700  Van  Home,  702  note,  703  El- 

ston,  706  Hurley,  and  note,  709  Jackson. 
Repairs  by  cotenant,  716  Calvert,  719  note,  720  Pickering. 

CONFIRMATION, 

Defined,  188. 

Distinguished  from  quitclaim,  IBS  note. 

CONSTRUCTIVE  ADVERSE  POSSESSION, 

Color  of  title,  requirement  of,  81  Jackson,  82  note. 

Conflicting  or  overlapping,  89  Ralph,  91  note. 

Necessity  for  actual  adverse  possession,  84  Bailey,  81  Jackson. 

CONVEYANCES, 

See  Mode  of  Conveyance. 

COPARCENARY, 

Nature  of,  688. 
Partition,  689. 

COVENANTS  FOR  TITLE, 

Action  for  breach,  effect  of  transfer  of  after-acquired  title  by  estoppel 

upon,  804  Resser. 
Release  of  covenantor,  778  note. 
Run  with  the  land,  734  Noke. 

Broken  covenants,  754  Lewes,  755  Kingdon,  757  Kiugdon,  759  Mitch- 
ell, 767  Schotield. 
Claim  on  covenants  available  to  successors  to  covenantee's  estate,  746 

Andrew,  748  Williams,  749  Beardsley,  753  St.  Clair. 
Privity  of  estate  between  covenanting  parties  required,  734  Noke,  736 
Bed'doe,  740  Solberg. 
Successive  covenants,  776  Wilson. 

When  assignor  may  sue  on  covenant  broken  after  assignment,  770  Mark- 
land. 
COVENANT  TO  STAND  SEISED, 
Freehold  in  futuro  by,  255  Roe. 
Nature  of,  236. 
Relationship,  255  Roe,  258  Murray. 

CREATION  OF  EASEMENTS  BY  IMPLICATION, 
See  Implication. 

CROPPING  CONTRACTS, 
See  Years,  Estates  for. 


INDEX  947 

[The  figures  refer  to  pages] 

CURTESY, 

Defined,  580. 

Extent  of  interest,  582  Mattock,  583  note,  584  Foster. 

Nature  of  husband's  title,  595  Watson. 

Interest  remaining  in  wife,  584  Foster. 
Seisin  of  wife,  588  Borland's  Lessee. 

DEDICATION, 

Acceptance  to  bind  lando^Tier,  182  Cassidy. 

Municipality,  183  Downing. 

Proof  of,  184  Ogle. 
By  equitable  o'mier,  165  Cincinnati. 

Character  of  user  required,  164  Rex,  174  Waters,  177  note. 
Effect  of,  163  Lade.  165  Cincinnati. 
For  cemetery,  177  Wormley. 
Grantee  unnecessary,  165  Cincinnati. 
Length  of  time  required,  163  Rex,  and  note. 
Limited,  164  note. 
Proof  of,  164  Rex,  174  Waters. 
DEFEASANCE, 
•     Defined,  231. 

DELIVERY, 

Acceptance,  375  Thompson,  383  note,  384  Welch. 

In  escrow  to  grantee,  334  Whyddon,  335  Hawksland,  336  Williams,  336 
London  F.  &  L.  Prop.  Co.,  342  Wipfler,  344  Lee. 
To  agent  of  grantor  and  grantee,  336  London  F.  &  L.  Prop.  Co. 
Effect  of  improper  delivery  by  custodian,  347  Everts,  351  note,  352 

Schurtz. 
Necessity  for  valid  contract,  357  Campbell,  360  note. 
When  title  passes,  361  Hull,  362  Farley,  362  Hall,  365  May,  368  Scott, 
370  Baker. 
Manual  not  required,  288  Doe,  295  Fryer,  297  Mitchell,  303  Matson,  305 

Burnet. 
Recording  as  presumptive,  297  Mitchell,  300  note. 
Requisites  of  in  general,  297  Stanton,  281  Curry,  282  note,  283  Tisher,  2S6 

Parrott. 
To  third  party,  288  Doe. 

To  be  delivered  on  grantor's  death,  308  Wheelwright,  312  Ruggles,  314 

Johnston,  316  Moore,  316  note,  320  Owings. 
When  title  passes,  322  Stone,  325  Stonehill,  329  Smiley,  331  Rathmell. 

DERIVATIVE  TITLES,  156-943. 

DESCENT  CAST, 

Abolished,  11  note. 

Right  of  entry  lost  by,  5,  159. 

When  arises,  9. 

DESCRIPTION, 

See  Boundaries;    Exceptions  and  Reservations. 
DEVISE, 

Defined,  232. 

DISABILITIES, 

See  Adverse  Possession. 

DISSEISIN, 

By  election,  9. 

Defined,  3,  4,  and  note. 

Distinguished  from  dispossession,  7  Smith. 

Effect  of,  4. 

Remedies  upon,  4-7,  159. 
DOWER, 

Barred  how,  619  Ingram,  620  Grady,  622  Catlin,  624  Robinson. 

Defined,  597. 


948  INDEX 

[The  figures  refer  to  pages] 

DOWER— Continued, 

Fraudulent  conveyance,  effect  upon,  624  Robinson. 
In  estates  held  for  husband  in  trust,  600  Shoemaker. 

In  remainder,  600  Shoemaker,  602  Bates. 

Limitation  over  on  death  of  husband,  603  Edveards. 

Momentarily  held,  598  Holbrook. 

Upon  condition  subsequent,  608  Ellis. 
Nature  of  interest  while  inchoate,  612  Flynn,  616  note. 

After  death  of  husband,  610  Wallis. 
Protection  of  against  waste,  616  note. 
Signing  deed  as  bar  of,  622  Catlin. 
Statutory  modifications,  627  note. 
Taxation  of  under  inheritance  tax,  616  Crenshaw. 
Value  determined  as  of  when,  624  note. 
Where  husband  had  executed  escrow  deed,  365  note. 

Deed  to  be  delivered  on  death,  329  Smiley. 
Widow  of  surviving  joint  tenant,  597  Broughton. 

EASEMENTS, 

See  Implication. 

EMINENT  DOMAIN, 

Extent  of  interest  acquired,  154  note. 
Nature  of  title  by,  154  note. 
When  title  passes,  154  note. 

ENTIRETIES,  ESTATE  BY, 

Created  how,  686,  692  Thornburg,  698  Pegg. 
Defined,  689. 

ENTRY, 

Restoration  of  seisin  by,  4. 

ESTATES  CREATED,  547-733. 

ESTOPPEL  BY  DEED, 

By  representation,  783  Hannon,  789  note. 
-  Effect  of  warranty,  779,  780  Jackson,  790  Ayer. 
In  quitclaim  deed,  781  Bayley. 
Transfer  of  after-acquired  title  by,  793  Doe,  796  note,  796  Perkins,  797 

Jordan,  801  Jaiwis,  804  Resser. 
As  affecting  actions  upon  covenants  for  title,  804  Resser. 
Effect  of  recording  statutes  upon,  858  Tefift,  862  Wheeled. 

EXCEPTIONS  ANT)  RESERVATIONS, 
Coal  reserved,  449  Whitaker. 
Easement  "reserved,"  455  Dee,  461  Smith's  Ex'r. 
Exception  of  part  of  water  privilege,  450  note. 
Must  not  be  repugnant,  449  Dorrell. 
Pleading,  452  note. 
Road  "reserved,"  452  Kister. 
To  stranger,  463  Haverhill  Sav.  Bank. 
See  Implication. 

EXCHANGE, 
Defined,  161. 

EXECUTION  OF  DEEDS,  275-393. 

PEE  SIMPLE, 
Defined,  547. 
How  created,  547  and  note. 

Conflicting  clauses,  548  McCullock,  549  note,  550  Carl  Lee. 
Upon  limitation,  552  First  Universalist  Soc 

FEE  TAIL, 

After  possibilitv  of  issue  extinct,  579. 

Defined,  557,  558. 

How  converted  into  fee  simple,  560  Ewing. 


INDEX  949 

[The  figures  refer  to  pages] 

FEE  TAILr-Continued, 
How  created,  558,  559. 
Recognized  in  modern  cases,  560  Ewing. 
Statute  De  Donis,  556. 
Under  statutory  modifications,  566  Dungan,  569  note. 

FEOFFMENT, 
Defined,  156. 
Necessity  for,  156. 
Tortious,  4,  158. 

FINE, 

Defined,  160. 

FORCIBLE  ENTRY, 

Rights  of  tenant  upon,  636  Turner,  638  Hilary,  639  Pollen,  645  Reader, 
652  Low,  657  note. 

FRAUDULENT  CONVEYANCES, 

Voluntary  conveyances  where  subsequent  conveyances  for  value,  812  Doe, 

820  Cooke. 
Purchaser  for  value,  825  note. 

GRANT, 

Defined,  162. 

HUSBAND'S  INTEREST  IN  WIFE'S  REALTY, 

After  birth  of  issue,  see  Curtesy. 
Before  birth  of  issue,  580  Montgomery. 

IMPLICATION, 

General,  466  Coppy,  467  Robins,  469  Palmer. 
Implied  grant. 

Construction,  538  Weeks,  541  City  of  Battle  Creek. 

Necessity,  469  Pinnington,  494  Brigham. 

Quasi  easements  that  are  apparent,  535  Butterworth. 

Continuous,  474  Polden,  526  Tooth,  527  Liquid  Carbonic  Co.,  529 
Adams. 
Necessai-y,  518  Buss,  526  Tooth. 
Implied  reservation  where  necessity,  469  Pinnington,  494  Brigham,  491 
Ray,  497  note,  500  Mancuso,  511  Brown. 
Reciprocal  easements,  486. 
Simultaneous  conveyances,  487  Phillips. 

JOINT  TENANCY, 

Created  how,  686,  690  Mustain,  692  Thornburg. 
Defined,  685,  686. 
Partition,  687. 

LAPSE  OF  TIME, 

Disabilities,  91  Doe. 

Effect  of  when  coupled  with  possession,  19-43. 

Tacking  possessions  in  defense,  24  Goody,  31  Shannon,    32  Harlan,  34 
Sherin,  36  McNeely. 
In  attack,  26  Carter. 
Prescription,  139  note. 
Privity,  36  McNeely,  39  Kldi, 
LEASE, 

Defined,  161. 

See  Surrender. 

LIFE  ESTATES, 
Created,  572. 
Defined,  570. 
For  indefinite  time,  575  Thompson. 

Life  of  lessee  and  others,  573  Rosse. 
Life  of  lessee  and  heir,  573  Amos. 
See  Curtesy;    Dower;    Fee  Tail. 


950  INDEX 

[The  figures  refer  to  pages] 

LIGHTS, 

Easement  of  by  implication,  4G9  Palmer,  491  Ray. 

LIS  PENDENS, 

Doctrine  of,  914  note. 
Record,  of,  914  note. 

MODE  OF  CON^EYANCl!:, 
Common  law,  156-232. 
Modern  statutes,  268-275. 
Statute  of  Uses,  232-268. 

MONUMENTS, 

See  Boundaries. 

NOTICE, 

See  Record. 

PARTITION, 
Defined,  162. 

POSSESSION, 

Basis  for  ejectment,  11  Asher,  26  Carter. 

Compensation  in  eminent  domain,  13  Perry. 
Taxation,  16  note. 
Effect  of  wrongful  possession  upon  owner,  17  Sohier. 

For  period  of  statute  of  limitations,  21  Hughes,  72  Dean. 
See  Adverse  Possession. 

PRESCRIPTION, 

Adverse  user,  121  Pavey,  125  Barber,  128  Lechman. 

Character  of  rights  subject  to  acquisition  by,  112  Webb,  121  note. 

Continuity  of  user,  132  Lehigh  V.  R.  Co, 

Intervening  disabilities,  94  Wallace,  104  Lamb. 

Light  and  air,  111,  112,  117  Hubbard. 

Tacking,  139  note. 

TheoiT  and  development,  94  Wallace. 

Time  period  commences,  114  Sturges. 

Servient  estate  held  by  tenant,  109  Baxter. 

PRIORITIES, 

See  Fraudulent  Conveyances;    Record, 

PRIVITY, 

See  Lapse  of  Time. 

I'ROPERTY  CONVEYED, 

See  Boundaries;    Exceptions  and  Reservations. 

PURCHASER  FOR  VALUE, 

See  Fraudulent  Conveyances ;   Record. 

QUARANTINE, 

Widow's  right  of,  610  Wallls. 

RECORD, 

As  notice  in  England,  827  Bedford,  827  Morecocfe. 

In  United  States,  837  Simonson. 
Necessity  of  as  against  purchaser  from  heir,  849  Youngblood. 

Creditors,  868  Holden. 

Grantee  in  quitclaim,  882  Marshall,  834  note,  885  Smith's  Heirs,  88T 
Boynton,  892  note. 

Grantee  of  purchaser  with  notice,  852  Morse,  854  Woods. 

Purchasers  for  value,  877  Strong,  S78  note,  880  Thomas. 

Purchasers  on  execution,  872  Sternberger. 
Notice  instead  of,  829  La  Neve,  834  note. 

Knowledge  of  deed  on  record  improperly,  909  Nordman. 


INDEX  951 

[Tte  figures  refer  to  pagesl 

RECORD — Continued, 

Possession,  898  Galley,  901  note,  902  "Williamson, 

Recitals,  892  Moore,  893  Baker,  894  Patman. 
Of  equitable  title,  837  Simonson. 

Lis  pendens,  914  note. 

Unacknowledged  deed,  914  Sigoumey. 
Out  of  chain  of  title,  843  Losey,  845  Rankin,  854  Woods. 
Sufficiency  of,  916-943. 

Incorrect;  amount  stated,  926  Frost,  927  Terrell,  929  Mangold. 

Index,  932  Prouty,  937  Mutual  L.  Ins.  Co. 

Names  of  witnesses  omitted,  916  Pringle. 

RELEASE, 

Defined,  187. 

REMAINDERS,  731-733. 

RESERVATION, 

See  Exceptions  and  Reservations;   Implication. 

REVERSIONS,  731-733. 

SEALING, 

Abolished,  278, 
Required,  275  Jackson. 
Sufficiency  of,  278. 

SEISIN, 

Defined,  2. 

Importance  of,  2,  7  note. 

Mystery  of,  1. 

SIGNING  OF  DEEDS,  275. 

STATUTES, 

Enrolments,  247. 

Frauds,  157. 

Fraudulent  conveyances,  810-812. 

Limitation,  19-21. 

Recording,  826,  834r-837. 

Uses,  236. 

STREAMS, 

See  Boundaries. 

STREETS, 

See  Boundaries. 

SUFFERANCE, 

Tenancy  at,  636. 

SURRENDER, 

Defined,  188,  189. 

In  fact  by  cancellation,  190  Lord  Wai*d. 

Conditional,  191  Allen. 
In  law. 

Acceptance  of  third  party  as  tenant,  207  Thomas. 

Incorporeal  property,  221  Lyon. 

New  lease  not  creating  interest  intended,  195  Davison,  197  Zick,  and 
note,  200  SchiefCelin. 

New  lease  to  commence  in  futuro,  195  Ive. 

Reletting  after  abandonment,  209  Walls,  211  Gray,  217  Oldewurtel, 
220  note. 

Yielding  possession  to  landlord,  206  Whitehead. 

TACKING. 

See  Lapse  of  Time. 

TAX  TITLES,  155  note. 


952  INDEX 

[The  figures  refer  to  pages] 

TENANCY  BY  ENTIRETIES, 

Created  how,  6S9,  692  Thornburg,  698  Pegg, 
Defined,  689. 

See  Concurrent  Ownership. 

TENANTS  IN  COMMON, 

Created  how,  687,  688,  698  Pegg. 
Defined,  687. 

See  Concurrent  Ownership. 

TORRENS  SYSTEM,  941  note. 
TRUST, 

Use  upon  a  use  upheld  as,  262  note. 

USES, 

Active,  266  lire,  268  note. 

After  Statute  of  U.ses,  239-268. 

Bargain  and  sale,  236. 

Before  Statute  of  Uses,  232-238. 

Covenant  to  stand  seised,  236. 

Created  how,  235,  236. 

Enforcement  of,  233. 

Enrolments,  Statute  of,  247. 

Estates  in,  234. 

Operation  of  Statute  of  Uses,  239  Green;  248  Lutwich. 

Personal  property,  266  Ure. 

Raised  in  connection  with  common  law  conveyance,  239-246. 

Raised  independently  of  common  law  conveyance,  247-261. 

Reasons  for  introduction  of,  232. 

Resulting,  235,  240  Sbortridge,  241  Armstrong,  241  Van  der  Volgen. 

Shifting,  234. 

Springing,  2.34. 

Statute  of,  236. 

Use  upon  a  use,  261  Tyrrel,  262  Doe. 

WATERS, 

See  Boundaries ;  Accretion. 

WAYS  OF  NECESSITY, 

By  implication,  469  Pinnington,  494  Brigham,  495  Dabney. 

WIFE'S  INTEREST  IN  HUSBAND'S  REALTY, 
See  Dower. 

WILL, 

See  Devise. 

WILL,  ESTATE  AT, 

Defined,  ^34,  0:^5,  636. 

Determined  by  conveyance,  641  Curtis. 

When,  &36  Ix^ighton. 
Where  rent  payable  periodically,  642  Say. 

See  Forcible  Entry. 

YEAR  TO  YEAR,  ESTATES  FROM, 
Assignable,  657  Braythwaite, 

Entry  under  agreement  for  lease  and  payment  of  periodic  rent,  657  Brayth* 
waite. 
Void  parol  agreement  for  lease  providing  for  periodic  rent,  665  Gris- 

wold. 
Void  parol  lease,  664  Clayton,  665  note. 
Holding  over,  670  Right,  672  Ilerter,  675  Goldsborough,  677  King. 
Notice  to  quit,  650  Arltenz. 
Payment  based  on  goods  purchased,  as  periodic  rent,  0G9  Lyons. 


INDEX  953^ 

[The  figures  refer  to  pages] 

YEAR  TO  YEAR,  ESTATES  FROM— Continued, 

Terms  of,  as  contained  in  agreement  for  lease  unexecuted,  660  Doe,  662 

Coudert. 
When  terminable,  657  Layton,  662  Coudert 

YEARS,  ESTATES  FOR, 
Created  how,  628,  629. 

Cropping  agreements  as,  629  Hare,  630  Caswell,  631  SteeL 
Defined,  628. 


WX8T  FUBLIBHING  CO.,  FBINTBBB,  BT.  PAUL.  UIMS. 


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